Petition for Writ of Certiorari — Washington R. & Elec. Co. v. Scala

Supreme Court brief1917

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- ANN CATHERINE ‘SCALA, ADMINISTRATRIX

_ OF THE ESTATE OF ALVIN. JOSEPH SCALA,

DECEASED, RESPONDENT.

WASHINGTON RAILWAY AND

ELECTRIC COMPANY, —_—™

- By Counsel.

Attorney for Pelitioner.

IN THE

Supreme Court of the United States,

WASHINGTON RAILWAY AND ELECTRIC COM-

PANY, PETITIONER,

Us.

ANN CATHERINE SCALA, ADMINISTRATRIX

OF THE ESTATE OF ALVIN JOSEPH SCALA,

DECEASED, RESPONDENT.

Petition for Writ of Certiorari.

To the Honorable Judges of the Supreme Court of the

United Slates:

Your Petitioner, the Washington Railway and Electrie

Company, respectfully prays that a writ of certiorari

a issue to the Court of Appeals of the Distriet of Columbia,

a to review a certain final judgment of the said court

J rendered on the 4th day of December, 1916, on a certain

appeal prosecuted by your Petitioner from a final judg-

ment of the Supreme Court of the Distriet of Columbia

in a certain action at law, wherein your Petitioner was

the defendant and the Respondent was the plaintiff,

and in which a judgment for 87,500 had been rendered

against your Petitioner and in favor of the Respondent.

| In the Court of Appeals your Petitioner was appellant

and the Respondent was appellee.

The action arose under the Federal /mployers’ Lia-

bility Act of April 22, 1908 (35 Stats. L., 65). The

7636—1

aa tneiad

Respondent’s decedent while a conductor in the employ

of your Petitioner was in charge of a trolley car operat-

ing between the city of Washington, in the District of

Columbia, and Glen Echo Park, in the County of Mont-

gomery, State of Maryland, and was killed by his

coming in contact with a trolley pole alleged to have

been negligently left in dangerous proximity to the

track and the car of your Petitioner thereon. The acci-

dent occurred on July 18, 1913. The decedent survived

the injury but thirty minutes, and died without having

regained consciousness. The action was instituted on

the 27th day of January, 1914. The declaration as

originally filed made no claim for conscious pain and

suffering on the part of the decedent, and only claimed

pecuniary damages resulting to the next of kin for

whose benefit it was instituted. In October, 1915, more

than two years after the accident, and during the progress

of the trial, the declaration was amended so as to

allege and seek a recovery for conscious pain and suffer-

ing. The defenses were:

(1) That the defendant, a street car eom-

pany purely, not engaged in the transportation

of freight of any kind, was not a “common carrier

by railroad” within the meaning of the Federal

IXmployers’ Liability Law of 190s;

(2) The entire absence of any negligence on

its part;

(3) That the death of the decedent was caused

by his sole negligence;

(4) That it wasthe result of an aecident, to wit:

his losing his footing while passing along the

runningboard;

(5) That the risk of such injury was assumed;

(6) That as to the conscious pain and suffering.

(a) That the evidence did not show that he

had undergone conscious pain and uffering:

(b) That the statute of limitations barred

such a claim before the declaration assert-

ing it was amended.

The evidence showed without contradiction that the

condition complained of was a permanent and obvious

one; that the decedent had been in the employ of the

defendant for over twelve months, and had been over

‘this route repeatedly and in excess of 150 times within a

month or two of his death; that the proximity of the pole

did not cause him to fall, but that he lost his footing on

the runningboard of the open summer car before reach-

ing the pole, which caused his body to swing far beyond

the outside of the car, thus causing his body to strike

the pole and throw him from the car.

The Court refused to direct the jury to return a verdict

on the ground of assumption of risk or that defendant

was not a common earrier by railroad, and refused

prayers submitting those questions to the jury: granted

prayers allowing recovery for conscious pain and suffer-

ing of decedent, as well as pecuniary loss to the bene-

ficiaries, and directed the Jury as matter of law that if

the pole was dangerously near the track the plaintiff

was entitled to a recovery. The jury returned a verdict

for the plaintiff for $7,500 in solido, though the deeedent

was but 19 years of age and was earning gross but S60

per month.

It will be seen that this case necessarily involved the

construction of the first, third and fourth seetions of

the Federal Employers’ Liability Aet of 1908, and see-

tions six and nine of the Amendatory Aet of 1910.

It is the confident contention of your Petitioner that

the Employers’ Liability Law of 1908 is a general statute

and that the Petitioner is entitled as of right to a writ of

error bringing this case to this eourt for review. An

application for such a writ was duly made to the Court of

Appeals of the Distriet of Columbia and was granted

by that Court, and the ease is now on the docket of this

Court in accordance therewith. Counsel for the Re-

spondent, however, appeared in the Court of Appeals

FARE FRR as SERN TIES ENE ORT E ERE beh eit RIERA A SP

of the District of Columbia after the said writ of error

had been granted and filed a suggestion for the revoca-

tion of the order allowing the writ, upon the ground that

though it appeared from the evidence in the case that

the decedent was engaged on an interstate trip at the

time of his injury, yet at the instant of the Injury he was

within the territorial limits of the District of Columbia

and that therefore the right of action accrued under Sec-

tion 2 of the Act independent of Section 1, and that

therefore the writ of error did not lay because ‘when the

injury involved oceurs within the territorial limits of

the Distriet of Columbia under Section 2 of the Act of

1908,” the construction of a local law applying to the

District of Columbia alone is involved, and not a

“general law of the United States within the meaning

of the 6th clause of the Judicial Code.”

This view of the law is deemed uwateanble by your

Petitioner as will be hereafter indicated, aud this Petition

is merely presented out of an abundance of caution.

Assuming, however, for the purposes of this Petition,

that the statute as applicable to the facts stated in the

declaration and shown in evidence is a local law “within

the meaning of the 6th clause of the Judicial Code.” i

is urged that a writ of certiorari should be granted ta

the instant ense, (1) beeause it tnvolves aot only the con-

struction of Section L of the Aet of April 22, 1908, but

Section 2 as well: to wit, whether or not a street rail

way company such as the defendant is shown to be, is a

“common earrier by railroad” withia the meaning of the

Aet of April 22, 1908. The language of both sections in

that regard is identical and subject to but one construe:

tion as to the character of carriers affected. The trial

court and the Court ef Appeals both held that your

Petitioner was “a common carrier by railroad” within

the meaning of that Act, coatrary to the holding of this

Court in Omaha & Council Bluffs St. Ry. Co. vs. Tater:

BRP RTA AAE em RP RI PE YS Dima tit CORA : 5 = Catlin ages

state Commerce Commission, 230 U. 8., 324. (2) It

involved also the construction of Sections 3 and 4 of the

Aet of April 22, 1908, which are undoubtedly general

statutes in language, scope and purpose, aad ean receive

but one proper construction whether applicable to eases

arising under Neetion 1 or wader Section 2 of the Act of

1908, and therefore make it incumbent on this Court to

give them that authoritative and final construction which

it alone can give. The only way that such a construction

ean be ascertained and enforeed under the conditions

assumed, is by this Court taking jurisdiction by certio-

rari, if necessary, and reviewing the construction placed

on these sections by the Court of Appeals of the District

of Columbia in the instant case.

The same is true as to Sections 6 and 9 of the Amenda-

tory Act of April 5, 1910 (36 Stats. L., 291).

It would be intolerable if the Court of Appeals of the

District of Columbia should be permitted wader the guise

of construing Section 2 as a purely local statute to put

& coastruction on all the other seetions of that Act

different from that recognized by this Court, and further,

that such misconstruetion should be beyond the control

of this Court and subject to but one construction as to

the character of carriers affected.

The trial court and the Court of Appeals of the

District of Columbia both held that the institution of

the original suit, though no elaim was there made for

conscious pain and suffering of the decedent, stopped the

running of the statute of limitations as to that elaim

which acerued instantly to the decedent before his death,

us well as to the right of aetion given by the Act origi-

nally for the benefit of the next of kin alone, and whieh

did not and could not acerue to any one until after his

death, thergby holding that the right of action made to

survive under Section 9 was identical with the right of

action given under Sections 1 and 2 originally for the

heaefit of the next of kia, contrary to the holding of this

Court in Michigaa Central Railroad vs. Vreeland, 227

U.S... 50: St. Louis, Iron Mountain & Southern R. (Co.

re. Craft, 237 U. 8., 648; Garrett vs. L. & N. R. Co.,

235 U.S., 308.

Of eourse if this Court holds that the writ of erro)

eranted by the Court of Appeals of the District of

Columbia which brought this case to this Court was

properly granted, then this Petition could) well be

refneed: and as heretofore stated, it is only through an

abuudanee of caution and to preserve the right of this

Court to review the judgment, if it holds that the writ

of error was improperly awarded, that this Petition 1s

presented,

Counsel for the Respondent, in resisting the applica

tion of your Petitioner for the writ of error when applied

for. cited but two cases to support their contention:

te wit. American Security & Trust Co. 1s. District ol

Columbia, 224 U. 8., 491; Wash., Alex. & Mt. Vernon

R. Co. rs. Downey, 236 UL 8., 190. The former eas:

involved a purely local statute and can have no applica

tion to the instant ease. The latter ease arose under th

First Employers’ Liability et of 1906, which had pre-

viously been declared unconstitutional as to the States,

but constitutional as to the District of Columbia. “This

Court held that it thereby became a local statute purely

and not a general statute. The present Chief Justice,

adyverting to this feature of the case, said (p. 193):

“While the transit in which the train wa-

engaged was not purely local, the accident com-

plained of oecurred within the coufines of the

District of Columbia, and the statute beeame

applicable concerning it because, as a local statute,

it governed in the absence of legislation by Congress

of a general character gove rning the subject. Chicago,

VM. & St. PLR. Co. vs. Solan, 169 UL S., 138, 12

L.. Ed., 688, 18 Sup. Ct. Rep., 289; Pennsylvania

R. Co. vs. Hughes, 191 U.8., 477, 48 TL. d., 268,

24 Sup. Ct. Rep., 132; Martin es. Pittsburgh «&

. &. RR. Coe., 208. U. &., 284, 61: L. Ed., 184, 27

Sup. Ct. Rep., 100, 8 Aan. Cas., S¢. To take

jurisdiction, therefore, we would be compelled to

decide that a purely local statute which would be

void if it were geveral in character.was yet opera-

tive in such aspect, and that because a local law

was applicable to a given situation solely for the

reason that there was not general law to control,

the local law was a general law.”

There is, however, no room for such 2 conte! tien in

the preset Case. It is true that Section 2 applies to

Seommoa earriers by railroad withia the Distmet of

Columbia,” but it also applies to “cominon earriers Vy

railrond within the territories, the Panama Canal Zone,

and other possessions of the United States.” So that, 1

ix not strietly local even under Section 2.0 But even more

clearly Section 1 is confessedly “general” in every aspect

and applics to‘ every common earrier by 1: road white

engaged in commerce between any of the several states

or territories or between any of the states or territories,

or between the District of Columbia ei d any of the states

or territories,” thereby excluding it from the reasc, ing

of Chief Justice White which made the local statute Gals

applicable in such transit orn Tike absence of legislation hy

Congress of a general character gov rning the subject.”

The case of MeGowan vs. Parrish, 228 U.8., 512, very

clearly lays down the rule that when the construct lon of a

law of the United States which is applicable to the United

States generally is drawn in question by the defendant,

aright of appeal exists and a writ of error should be

granted.

For the reason that the only way that uniformity of

construction so essential to the proper administration of

these statutes ean be enforced in the Distriet of Columbia

in event it should be held that Seetion 2 and not Section

Sep

Sofi.

RE ORO OE

os races

1 is the only section under which the right of action

accrues when injuries occur within the District of Colum-

bia, even though both employer and employee are then

engaged in interstate commerce, and that the section is

purely local in its application, and affects all the other

sections of the Act with its local character, is by review-

ing such erroneous decisions, it is respectfully prayed

that a writ of certiorari be awarded.

All of which is respectfully submitted.

WASHINGTON RAILWAY AND

ELECTRIC COMPANY,

By Counsel.

Attorney for Petitioner.

SUBJECT INDIEN.

PAGE

REASONS in opposition to the writ of certiorari:

First: The case is already pending in this Cours

on writ of error. es : era pe

Necond: The time for presenting a petition for

writ of certiorari will have expired on the date

When said petition is submitted. 2A

hird: The petition is not sworn to }

wrth: Phe petition does not correctly or com

pletely state the proceedings below, and is mis

leading 6-10

Conclusion: 19-20

LIST OF CASES,

PAGE

Hl. Surety Co. ve. Peeler, 240 UL S., 214 sf)

Kansas City W. Ry Conv. MeAdow, 240 UL 8.) 510 12-14

mo. KB. T. RK. Co. vy. Wulf, 226 U. 8., 570 )

Seaboard Nir Line, 24t Ul 8. 290 10

St. Louis, 1. M.& S. Co. vy. Craft, 236 0. S8., 648 hy

Spokane & I. E.R. Co. vo U.S. 241 UL S., 844 Z

Spokane & bo fo oR. Conv. Campbell, JEP ES. $9 18

mmane & (Ry. v. £.. €., 20 UU. &., 324 Pan

United States vo BO & OLS. RR. 226 UL S., 14 11

PORa Rs Sent crne en Be ay ea

;

— Je

TE ae

IN THE

Supreme Court of the United States

OCTOBER TERM, 1916.

No. S26.

File No. 25.565.

WASHINGTON RATLWAY AND ELEC

TRIC COMPANY, Petitioner,

US,

ANN CATHERINE SCALA, ADMINIS

TRATRIX OF THE ESTATE OF ALVIN

JOSEPH SCALA, DECEASED, Respond

ent.

BRIEF

ON BEHALF OF RESPONDENT

IN OPPOSTTION TO PETITION FOR WRIT OF

CERTIORARI

The respondent, Ann Catherine Scala, administratrix

of the estate of Alvin -loseph Seala, deceased, respect

fully objects to the petition for, and the issuance by this

Honorable Court of, a writ of certiorari, for the follow

ing reasons:

IRE Eee Rane mena

Cee ee

Mpawtigtiey ‘ A Mite S

- Sue x REAR s

ve oth AAR TRG | Cott! PES I MRR ABN! ASS Rt BOGE

FIRST The case is already pending in this Court

on writ of error.

The action was originally brought on January 24,

i914, by respondent as plaintiff in the Supreme Court

of the Distriet of Columbia, and on December 11, 1915,

judgment on verdict in favor of plaintiff was entered for

$7,500. This judgment, on December 4, 1916, was at

firmed on appeal by the Court of Appeals of the Dis:

trict of Columbia, which court on December &, 1916,

granted a writ of error to remove said cause for review

by this Honorable Court. The petitioner, as plaintiti

in error in this Court, has filed its supersedeas bond,

and has had the Transcript of Record on said writ of

error printed, and the same is now on file in the clerk's

oftice of this Hlonorable Court.

It is respectfully submitted that, where the entire rec

ord of proceedings in the lower courts is embodied in

the printed Transcript of Record in this Court on a

pending writ of errer, a petition for writ of certiorari

in the same cause should be denied by this Honorable

Court.

SECOND: The lime for presenting a petition for writ

of certiorari will have erpired on the date when said

petil ion ts submitted.

On the 16th day of February, 1917, Daniel W. O° Don

oghue ond Arthur A. Alexander, attorneys for Respond

ent, were served with a printed Cunsigned in print or

ink) copy of the petition herein, together with typewrit-

ten notice that said petition “will be submitted to the

court on Monday, Vareh 9, 1917 at 12:00 noon, or as

soon thereafter as counsel can be heard: and on said

February 16, 1917, said petition and notice were “filed”

in the office of the clerk of this Honorable Court.

It appears from said petition that it is sought to have

this Honorable Court review by writ of certiorari a cer

tain tinal judgment of the Court of Appeals of the Dis

trict of Columbia rendered on the gfh day of December,

191,

Section 6 of the Act of Congress approved Septeniber

6, 1916, entitled An Net to Amend the Judicial Code.”

ete. 39 Stats. L.. 726. provides :

“Thatno * * * writ of certiorari intended

to bring up any cause for review by the Supreme

Court shall be allowed or entertained unless duly

applied for within three months after entry of

the judgment or decree complained of; * * *,

It appears from the “minutes” of February 5. Dt, of

this Honorable Court that on that daw the Court cad

journed until Monday, Mareh S, mext. at 7f a elock.”

Counsel for respondent understand that, while this

Honorable Court will convene on said Mareh 5, bOtT, at

said Jf oelock, the Court will not then be in session for

the presentation or submission in open court of any peti-

tions or motions of any description whatsoever, and that

the Court will not continue in session on said day to as

late as 12:00 noon, the time designated in said notice

for the submission of the petition herein, because: said

“T2200 noon” of said) Mareh 5, D917, is the appointed

hour for the reinaugural ceremonies of the President,

and because members of the bar cannot enter the Capitol

building to appear before this Honorable Court on said

day. Counsel for petitioner in designating said °12:00

hoon’ in said notice knew, or should have known, the

DADO ABE Ae SIE BEE Bon ae RRA ty rhs —_ we

MiP fib Ae Sa SSE SRN RT Aas BAREIS, IRD TR SMITE ED es AES ON aS TF Re an OST ROAPER is F00 SRT IA

PIER NR at Rae ARE Soca, st

3 2 A OA EE SREB RTECS IG LLL IOS ADIGA NE cc Na A RTE SES AR DAE PRO SORE

above-mentioned facts, and was bound to take notice

of the fact that this Honorable Court will convene on

said day, pursuant to the said entry on its minutes at

if o'clock, and not at 12 o'clock, on said March 5, 1917.

It is respectfully submitted that to allow the petition

herein to be presented in open court in advance of the

hour designated in said notice, that is, at 11 instead of at

12 o'clock on said March 5, 1917, would be contrary to

the notice prescribed by Section 3 of Rule 37 of this

Honorable Court (even if counsel could eain admission

to the Capitol building and court room on said day).

It is apparent, therefore, that the petition herein will

not, and cannot, be “sibiitted™ or “presented” in open

court at said TP ofclock, or at said 12 o'clock of said

Mareh 35, 1917, or at any time wafil after said Mareh

5. 191% whieh will be when more than “three mouths”

have elapsed from the date of the judgment complained

of: and that. therefore, this Honorable Court has ne

power or jurisdiction, under said Act of Congress, to

issue go owrit of certiorari to review said judgment of

December 4. 1O16,

It ix respectfully submitted that the petitioner in this

case cannot bring itself within said: statutory period of

“three months,” by simply having */iled™ its said petition

in said clerk's office on said Pebrnary 16, 117, for the

reason that the provisions of Section 4, Rule 37, of this

Honorable Court do not apply to the present situation.

Said rule reads as follows:

“4. Tnamy ease where the time for presenting

aw petition for certiorari is expressly limited by

statute and where the court has adjourned for

the term, the petition may be presented during

such adjournment and within’ the period pre

scribed, by filing it, together with the printed

record and briefs, in the office of the clerk, and

such filing shall have the same effect as a presen-

tation in open court.”

The “printed record” was filed herein as part of the

proceedings on the pending writ of error herein.

It is evident that said rule applies only to the sum

mer recess or vacation of the Court, “where the cout

has adjourned for the term.” The period of time from

said February 5 to March 5, 19tt, is bat part of the

“October Term, 19160 and is not an adjournment of

said term, and said Mareh 5, P9TT, is not the commence-

ment of an “adjourned or special term,” because Sec.

230 of “The Judicial Code™ Cas amended by the Act of

September 6, 1916, 39 Stat. at L. 726), provides that:

“See, 230. The Supreme Court shall hold: at

the seat of government one term annually, com

mencing on the first Monday in October, and such

adjourned or special terms as it may find neces-

sary for the dispatch of business.”

and because Rule 27 of this Honorable Court provides

that:

“The Court will, at every term, announce on

What day it will adjourn at least ten days before

the time which shall be fixed upon, and the Court

will take up no case for argument, nor receive

vny case upon printed briefs, within three days

next before the day fixed upon for adjournment.”

As stated, the minutes of the Court for said February

PEE PRE EEN LNG CERI ARM E :

ELIA ER, ATES EN Re RIG RAT. sie itn ne” ere ee ee - P

», POET, show: "Adjourned until Monday, Mareh 5 next,

at 11 o'clock” and there has been no announcement of

adjournment “for the ferm” during this present October

Term, 19E6, in accordance with said Rule 27. whieh

would make said) March 5, 1917, the commencement of

an “adjourned or special term.” or any action by the

Court which could change the status of the period of

said Pebruary 5 to March 5. L917, from a suspension of

sessions (i and as part of said “October Term. 19t6°

toan adjournment “for the term.”

Therefore, it is respectfully submitted that, under the

rules of this Honorable Court and under said Aet of

Congress, the mere “/i/ing” of said petition in said clerk's

office on February 16, 1917. and its subsequent actual

presentation in open court on any date affer said: Mareh

» INIT, do not constitute a writ of certiorari “duly ap

plied for within three months after entry of the jude

ment or decree complained off” and hence that said: peti

tion for said writ should be denied by this Honorable

Court.

THIRD: The petition is wot sirorn to.

The petition for writ of certiorari in this case is not

supported by the aflidavit of the attorney for petitioner,

or of any officer of the petitioning corporation, or by

any affidavit whatsoever, which omission is contrary to

the uniform practice; and, therefore, it is respectfully

submitted that said) petition should be denied by this

Honorable Court,

Fol a isi Py The petition does ol correctly CO

pletely state the proceedings below, and is misleading.

The petition for writ of certiorari in this case does net

RAR aL 2a ae dees 8 ¥ " _ ‘

: Rae: adic babel Inara ~ 7 *

- rhtntew wal ist

correctly or completely state the proceedings below in

the Supreme Court, and in the Court of Appeals, of the

District of Columbia, and is misleading in that:

(a) The petition alleges erroneously Cat the bottom

of page 1),

“that the getion arose under the Federal lm-

plovers’ Liability Act of April 22, 1908 (35

Stats. L., 65).°

and (on page 2) that:

“The declaration as originally filed made no

claim for conscious pain and suffering on the part

of decedent, and only claimed pecuniary dam-

ages resulting to the next of kin for whose bene

fit it was instituted,”

whereas the action was brought not only under said

Act. but also under the Amendatory Act thereto of

tpril 4, (910 (86 Stats. L., 291), and whereas the dee-

laration cliimed originally not only pecuniary damages

resulting to the next kin but also damages for the con-

scious pain and suffering of decedent, as will appear

by an inspection of the 3d and) tth counts of the dee

laration (Ree. 6-8).

(by The petition alleges erroneously Con page 2)

that “The decedent survived the injury but thirty min-

utes. and died without having regained consciousness td

whereas the evidence in the case, as shown by the trans:

LPP IRR SRE >

cript of record herein, establishes: that decedent survived

at least forty-one minutes o longer, and that he was

conscious during that period because he was constantly

eroaning and moaning, and opened his eves and spoke,

| AHN Bie tol EAL

saving some time after the injury: “Oh, my God.” See

the testimony of the witnesses: Tarbell (Ree. 20),

Hlardy (Ree, 22-25). Burroughs (Ree. 25-24), Knowles

(Ree. 24), Martz (Ree. 25), Perry (Ree, 27), Whalen

(Ree. 31), Holmes (Ree. 46), Wiser (Ree. 50-51).

(¢) The petition alleges erroneously and mistead-

ingly ton page 2) that:

“In October, 1915, more than two vears after

the accident, and during the progress of the trial,

the declaration was amended so as to allege and

seek a recovery for conscious pain and suffering,”

whereas the bill of exceptions in this case certifies that

the declaration was amended not only during the prog:

ress of the trial, but was also amended seven days before

trial, namely, on October 20, 1915, as follows:

“Andon that date and at that time the attorneys

for the plaintiff and the attorney for the defendant

being present in Court, and thereupon counsel for

plaintiff asked leave of the Court to amend the

fourth count of the declaration, by inserting in

the fifteenth line of the last page thereof, after

the word hemorrhages,” the words ‘and causing

him to suffer intense pain and injuries, and there

upon counsel for defendant stated to the Court

THAT HE DID NOT OBJECT TO THE AL

LOWANCE OF THE AMENDMENT; and there

upon the Court allowed said amendment, and

the case was continued and set for trial the fol

lowing week” (Ree. 17):

and the trial commenced

“on the 27th day of October, 1915;” (Ree. 17):

and whereas the original declaration pointed to the chain

for conscious pain and suffering, and the amendment

of said October ZO and also of Oetober 2g, 1915, were

merely in amplification of the allegations in that respect

in the original declaration, and therefore related back

to the beginning of the suit.

As was said in Il. Surety Co. v. Peeler, 240 U. S.,

214:

“In respect to the amendment of the complaint,

it is apparent that * * * there was an exist

ing right of action under the statute at the time

the suit was brought. * * * Phe Court mere

ly permitted the defective statement of the exist-

ing right to be corrected by the addition of appro

priate allegations, and in this there was no error.”

And in the case of Mo., K. & T. R. Co. v. Wulf, 226

U. S., 570:

“Nor do we think it (the amendment) was

equivalent to the commencement of a new action

so as to render it subject to the two years’ limita

tion. “© * * Tt introduced no new or different

state of facets as to the ground of action, and

therefore it related back to the beginning of the

suit.’’

And in Seaboard Air Line vy. Renn, 241 U. S., 290:

10°

“If the amendment merely expanded or ampli-

fied what was alleged in support of the cause of

action already asserted, it related back to the

commencement of the action, and was not affected

by the intervening lapse of time.”

(dd) The petition alleges erroneously and mislead-

ingly (on page 2) that:

“The defenses were: (1) That the defendant,

a street car company purely, not engaged in the

transportation of freight of any kind, was not a

‘common carrier by railroad, within the mean-

ing of the Federal Emplovers’ Liability. Law of

1908."

Whereas the entire bill of exceptions in this case may be

searched in vain for any words, statement, objection,

or exception therein, supporting the allegation that any

such defense was ever made in the fria/ court, or passed

upon by the trial court. Tt is true that such a defense

was nde for the first time in the Court of Appeals of

the Distriet of Colmmbia and passed upon by that Court,

but, asa matter of record, and as a matter of fact, that

defense, predicated on the term “railroad” was never

made in the fri? court. [ts first appearance in the case

Was in the printed Brief of petitioner as appellant in

the Court of Appeals of the Distriet of Columbia, and

in that Court, respondent urged, as if wow urges before

this Honorable Court, that a defendant cannot raise a

defense for the first time on appeal when it never raised

that defense on trial or made the slightest objection

based thereon all during the progress of the trial.

Moreover, the above-quoted allegation of the petition

is erroneous in stating that petitioner is a “street: car

company purely.” because the bill of exceptions herein

certifies that respondent introduced in evidence a cer:

tificate and the following U. S. Statutes-at-large ( Rec.

“3 Stats. at L., 326,

28 Stats. at L., 492,

29 Stats. at L., 246,

31 Stats. at L.. 270."

An examination of these statutes and certificate shows

that petitioner, under its old corporate name, the “Wash.

& Great Falls Electric Railway Company.” was chart

ered not as a “street car company purely” but as an

electric trolley railway line running entirely westieard!y

from 36th and Prospect Streets, northwest, in the city

of Washington, Do C.. out to Cabin John. in the State

of Marvland; that is, as an interurban or suburban

electric trolley line, doing an interstate business, run-

ning from the western edge of the city westward)

through sparsely-settled suburbs and the open country,

with the right to institute condemnation proceedings

to acquire its right of way, ete. and that afterwards,

imultaneously with the change to its present corporate

name of “The Washington Railway and Electric Com-

pany” itentered into a contract whereby it obtained the

use of the tracks of a city street railroad running east-

wardly from its said beginning. As was said by the

Court of Appeals (Ree. 75): The petitioner “was in

corporated under the Net of Congress * pie ak

examination of this act and of the acts amendatory

thereof * * diseloses that the company was

chartered, not as a street railway company, but as an

eleetric trolley suburban and interurban railway com

‘

rf]

‘4

pany,” ete. Tn addition to the evidence of said statutes

and certificate, the bill of exception discloses (Ree.

33) an admission by petitioner's present counsel, who

also represented it in both courts below, that petitioner's

railroad is constructed on its own property :

“Mr. O'Donoghue: * * * You admit: that

vou own the station. You willadmit that instead

of my having to bring the Recorder of Deeds up

here?

Mr. Barbour: To presume it is. Tt is on our

right of way. * * *.

Mr. O'Donoghue: It is of record that they own

the right of way and the land running from Pros-

pect Avenue up to Glen Echo, and also the rail

road station on 386th Street on the east side of

36th Street, between Prospect Avenue and = N

Street.

Mr. Barbour: = Yes.”

The injury occurred not within the city limits of

Washington or Georgetown, but out in country on the

petitioner's right of way at MeCow’s station, about a

mile west of the western edge of Georgetown, as shown

by the evidence (Ree. 8, 51).

It is respectfully submitted that under the above-men-

tioned evidence, and from other evidence to be found in

the Transcript of Record, and under the decisions of

this Honorable Court, respondent is a “common carrier

by railroad” within the meaning of the statute.

See Kansas City Wo. Ry. Co. vo MeAdow, 240

U. Bi, oes

Spokane & I. E.R. Co. v. UL S., 241 U.S. 344;

Spokane & bE. R. Co. ve Campbell, 241 U.S.

497 ;

Omaha & CB. Ry. ve be. €., 280 U.S. 324.

The petition herein on pages 4 and 5 attempts to argue

that the Omaha & Council Blutfs Ry. case, sapra, is au

thority for its contention that it is not a “railroad”

within the meaning of the Emplovers’ Liability Aet, but

that case construed the Interstate Commerce Act of

ISST, and not the Emplovers’ Liability Net of 1908. Mr.

Justice Lamar, in delivering the opinion of the Court,

pointed out that “in ISS7 that word (railroad) had no

fixed and accurate meaning” and that “the meaning of

the word is to be determined by construing the statute

as a whole” and reasoned that the Act of ISS87 only

“referred to railroads which were required to post their

schedules, not at street corners where passengers board

cars, but in ‘every depot, station or office where pas-

sengers or freight are received for trausportation’,” and

that “only a few of its requirements are applicable to

street railways, which did not do the business Congress

had in contemplation, and had not engaged in the pool-

ing, rebating and discrimination which the statute was

intended to prohibit,” and, therefore, held that the street

railway in question was not a “railroad” within the

meaning of the Act of ISS8T. In the course of the opinion,

however, Mr. Justice Lamar took occasion to sav:

“But it is said that since TS8S87, when the Act

Was passed, a new type of interurban railroad

has been developed, which with electricity as a

motive power, uses larger cars, and runs through

the country from town to town, * * * We

are not dealing with such a case, but with a com

Sea RRs Ls EAE RL en DOR TRA Stn DO? WANED BE BA BS. Le,

pany chartered as a street railroad. * * *

The case was heard on demurrer, with the opinion

of the Commission treated as part of the record.

It indicates that at some points the line is on

private property, but where this is and to how

great an extent does not appear :”

having previously observed that:

“Applying this universally accepted rule of con-

struing this word, it is to be noted that ordinary

railroads are constructed on the companies’ own

property,”

and:

“Street railroads, om the other hand, are local,

are laid in streets.”

Moreover, petitioner's contention is no longer an open

question in this Court, but was disposed of in the case

of Kansas City W. Ry. Co. vo MeAdow, 240 UL 8. 51,

wherein it was said:

“The errors assigned are, in substance * * *

that the Act (Emplovers’ Liability Act) does not

apply to electric roads. * * * The defendant

road appears to be of the class of the Traction

Company that was before the Court in United

States vo Baltimore & Ohio Southwestern R. R.,

226 UL S., 14, and that was excluded from the

decision in Omaha & Council Bluffs Ry. v. Inter-

state Commerce Commission, 230 U.S... 324, 337.

Such roads have been held to be within the acts

of Congress.”

ERLE LNB, ILL ha PAARL RON DIL

(@)) From the allegation (on page 2) that:

“Phe defenses were : lal

(6) That as to the conscious pain and suffer

ine. (a) That the evidence did not show that he

had undergone conscious pain and suffering:

ib) That the statute of limitations barred such

a claim before the declaration asserting it) was

amended.”

it might be inferred that said defenses were made in the

first instanee by defendant at the trial; whereas the bill

of exceptions certities that (Ree. 41-2

“at othe @lose of the plaintiffs case, the de

fondant, by its counsel, moved the Court :

te instruct the jury te return a verdict for the

defendant upon the ground that the evidence is

not sufficient to maintain the case stated by the

plaintif? in her declaration, stating ‘as matter of

law, that a pole 30 inches away from the stan

chion under the circumstances shown in this case

is far cnough away to relieve the company from

any negligence if a man is injured walking alone

the running-board with reasonable care’ and

stating the evidence showed that decedent was in

jured as the result of cassumption of risk ¢ and

in addition to that, stated there is no evidence

here to sustain any other assumption but) that

this man was injured as the result of losing his

foothold on the runnine-board. THESE WERE

THE ONLY SPECIFICATIONS MADE BY

COUNSEL FOR DEPENDANT IN SUPPORT

OF TIS MOTION :”

MNS P Jes os De

and that defendant's motion for a directed verdict at

the close of all the evidence in the case (Ree. 60), was

but a renewal of its former motion; and that it was not

until after the trial court had passed upon plaintit?’s

first five prayers «Ree. 66), and was considering plain

titt’s Praver No. 6 that defendant raised the question

of the bar of Statute of Limitations, and made any ob-

jection as to the claim for conscious pain and suffering.

And at no time in the trin} Court, not even on its motion

for a new trial, did defendant make the objection that it

was not a “railroad” within the meaning of the statute.

(f) The petition erroneously and misleadingly al-

leges (at top of page >) that:

“The evidence showed irithoul contradiction

that the condition complained of was a permanent

and obrious one; that * * * the decedent * * *

had been over this route repeatedly and in

excess of 150) times within a month or two of

his death; that the proximity of the pole did

not cause him to fall. but that he lost his foot-

ing on the rinning-board.” ete.

because the bill of exceptions shows that it was the

proximity of the pole that enused decedent to be struck

thereby, and that it was contact with the pole which

caused decedent to fall, and that decedent did not lose

his footing until after he was struck by the pole; and

because said allegation is misleading in that it fails to

etate. as shown by the bill of exceptions, that half of the

trips made by decedent were on the return track away

from the pole in question, and that decedent prior to

the time of the injury had never passed that pole irhile

on the running-board of the ear.

And because the petition, in stating: "Without contra:

diction that the condition complained of was) * * *

obrious.” disregards entirely the evidence to the con-

trary found in the bill of exceptions; for instance, the

testimony of the witness Wiser, who was the motorman

of the car at the time plaintiff's intestate, the conductor

on the same car, Was injured. Wiser testified as a wit-

ness on behalf of defendant, and his cross-examination

Was in part as follows:

“©. You never noticed that pole, did you?

AL No. sir: To never did.

Q. You never knew anything of it before this

time?

ALT have saw it many a time.

; * ** % * # %

Q. Was there anything to attract your at

tention to that pole more than any other pole?

A. Xe, 2.

* “ *

On redirect examination withess stated le lad made

that runout there wright often” (Ree. ot.

And the testimony of the witness Whalen. who wees

called by both sides, and who testified that the next

morning after the injury he went to the scene thereot

with certain officials of the defendant company. when

measurements were taken (Ree. 31, 49), and that un

der the circumstances” of discussing while there “the

distance of this particular pole as compared with the

other poles.” he was unable to notice that if was close:

to the track than the average, or normal, distances of

the other poles, and said on the withess stand :

“To oguess it was the average distance of the

poles away from the tracks.”

ae EE NT ES VE SERRE I wT TREN RE Bc WEY ESTA SL Fecha YD we Sa a eT

The evidence in the case shows that the pole in ques

tion was closer to the track than any other pole along

the track. (Rec. 40-1.)

(Oo) The petition alleges erroneously Con page 3)

that:

“The Court refused to direct the jury

that defendant was not a common carrier by

railroad

because, as hereinbefore mentioned, the trial court was

never called upon to pass upon said question; it) was

hever raised in the trial court by defendant,

(hy The petition alleges erroneously and mislead

ingly (on page 3) that:

“The Court © * * refused prayers sub-

mitting those questions (assumption of risk) to

the jury.”

because the bill of exceptions certifies that the Court

granted the following prayers on the question of as-

sumption of risk :

Plaintit!’s Praver No. 3 (Ree. 61),

Plaintiff's Praver No.5 (Ree. 61),

and also fully and fairly charged the jury in that re-

spect (Ree. 70-1) pand because there was only a general

objection taken to the Court's charge (Ree. 73).

(1) The petition alleges erroneously (page 5) that:

“The trial Court and the Court of Appeals of

the District of Columbia both held that the insti-

Wa ab Rb IER MIM ATRL G ME TAR ANUS 3 Se AC

tution of the original suit, (hough wo clan was

there made for conscious pain and suffertrg, stop-

ped the running of the statute of limitations,”

ete., .

whereas such was not in facet the ruling of cither the

trial Court or of the Appellate Court, because, as here-

inbefore pointed out, together with citations of authori

ties hereinbefore, the trial Court held that the original

declaration did “point” to the claim: for conscious pain

and suffering so that the amendment in respect thereto

Was merely in amplification of the allegations contained

in the original declaration, and was not barred by the

Statute of Limitation as it related back to the original

declaration, and the Court of Appeals affirmed this rul

ing of the trial Court,

CONCLUSION,

On the questions of whether the allegations of the

original declaration “pointed” to a claim for conscious

pain and suffering of decedent, and the amendment in

that respect, and whether petitioner is a “railroad”

Within the meaning of the statute ( Eimplovers’ Liabilits

Act of 1908 and Amendment of T9100). if should be

borne in mind that this Court, in the case of St. L. 1.

M. & S. Co. v. Craft, 287 UL S8., G48. which involved a

claim for conscious pain and suffering of a decedent, am

nounced that the Aet

“should not be narrowly or restrictively inter:

preted.”

For the reasons hereinbefore ser forth. and for the

further reasons that it is apparent from a reading ef

the petition herein and from an inspection of the Tran-

script. of Record herein, that a review is sought in this

Court mainly of the weight of the evidence in the trial

Court and that no questions of law were presented to sail

Court of Appeals, or will be, or can be, presented to

this Court which have not already been decided by this

Court in other cases adversely to the contentions of

petition herein by this Court, and that the rulings of

both lower courts were in accordance with the decisions

of this Court, it is respectfully submitted that the peti-

tion for writ of certiorari in this case should be denied

by this Honorable Court.

DANIEL W. O'DONOGHUE,

ARTHUR A. ALEXANDER,

lilorneys for Respondent, Ann

Catherine Scala, Administratrir

of the Estate of Alvin Joseph

Neala, Deceased.

Sie

eas

[nes D. MAHER |

CLERK}

IN THE

Supreme Court of the United States

OctoBER TERM, 1916.

No. 826.

WASHINGTON RAILWAY AND ELECTRIC COM-

PANY, PLAINTIFF IN ERROR AND

PETITIONER,

US.

ANN CATHERINE SCALA, ADMINISTRATRIX OF

THE ESTATE OF ALVIN JOSEPH SCALA, DE-

CEASED, DEFENDANT IN ERROR AND R:E-

SPONDENT.

In Error and on Petition for Certiorari to

the Court of Appeals of the District

of Columbia.

JOHN S. BARBOUR,

Attorney for Appellant and Petitioner.

LAW REPORTER PRINTING COMPANY, 616 FIFTH STREET NORTHWEST, WASHINGTON, D. C.

INDEX.

INDEX TO SUBJECT-MATTER; ASSIGNMENTS

OF ERROR; DISCUSSION OF POINTS OF

LAW AND FACT.

Pre

, Statement |

Assignments of Error 14

Errors Assigned on Petition for Writ of Certiorari 1

Errors Relied On 16-28

Preliminary. , YS

Discussion of Points of Law and Fact 28

I. The application of the Federal Emplovers’

Liability Law of 1908 to the case stated and

to the case proved 31

(a) The appellant company as a matter

of law can not under the evidence be

held to be a common carrier by a

railroad within the meaning of sec- 4

tion 1 of the Act of Congress of April &

22, 1908 31-42 &

(b) At the most that question was one of &

fact which should have been sub- E

mitted to the jury and not deter- Ss

mined for the jury by peremptory &

instructions as was done by granting Fi

appellee’s prayers Nos. 4, 5, 6, 7, 8,

all of which assumed as matter of

law the appellant to be a common

earrier by railroad within the mean-

ing of the Federal Statute, and as

such applied to the case 42-54

li INDEX

Il. The action of the trial court as affirmed by

the Court of Appeals was erroneous in re-

spect. to the question of recovery for con-

scious pain and suffering Pasuasees

(n) Because after all the evidence had

been taken and all witnesses dis-

charged, the court undertook to

allow the pleading to be so amended

as to introduce a new cause of action

(b) Which was already barred by limi-

tation of the statute which per-

mitted the cause of action to survive

fore the jury to warrant a recovery

therefor even if properly pleaded...

(d) The declaration even as amended

failed to assert sufficiently a claim

for such pain and suffering

(ce) The allowance of the amendment

operated a surprise and the appel-

lant’s motion for a continuance

should have been granted

(f) The appellee’s demurrer to the appel-

lant’s plea of the statute of limita-

tions should not have been sus-

tained —

Ill. There was no evidence of negligence on the

part of the appellant resulting proxi-

mately in the death of appellee’s de-

cedent. Hence the court erred in failing

to direct a verdict for appellant at the

conclusion of the appellee’s evidence and

again at the conclusion of all the evi-

dence. eee

(a) Because the appellee’s own evidence

uncontradicted showed that the de-

Page

54-68

OS-83

S3-S0)

90-95

Q5-! Me )

INDEX il

Page

cedent came in contact with the pole

after he lost his footing and that he

did not lose his footing because the

pole struck him................................ 97.116

(b) Because the line of poles was not

negligently placed dangerously near

the tracks as alleged in the declara-

ey a ee AS Hn a one 116-120

way to maintain permanent and

visible structures in close proximity

de | eee 120-122

(d) Because whatever dangers resulted

from the proximity of the poles to

the track was inherent and obvious

the decedent had ample oppor-

tunity to observe and appreciate

the danger, and therefore assumed

the risk resulting therefrom 122-152

IV. Even if there was evidence on any of the

above points to sustain a finding of the jury

against the appellant, such evidence merely

raised disptited questions of fact thereon

and the court erred in instructing the jury

peremptory in regard thereto in the follow-

ing respects _. ons 152

(a) In granting appellee’s prayers 3-A

and 5, and in refusing appellant's

prayers III-A, VII and IX 152-159

(b) In refusing appellant’s prayer IV in

respect to the facts from whieh both

knowledge and assumption of risks

are assumed 159-160

The Court Erred in Refusing Appellant's

Prayer X aac rineaceee 16]

fuigecaetth Se ne NNR rN Son oe ee

EPIRA NY es eee Sie Sa Sa 6 Le

Bees Sie S “ fil

EE aS RES A

INDEX

iv INDEX TO EVIDENCE.

Mrs. Fred G. Tarbell.

Mr. Geo. G. Whitney. _.

Mr. Theodore H. Hardy, Jr...

Mr. John H. Burroughs

Mrs. Emma E. Knowles............. = one z Ro

ee I ca lawendcumousasesaus

De I oo cassie ts casaniacbacustchens

Dr. Wm. F. O’ Donnell

My. B. Peyton Whaten......................-............

Mrs. R. Evelyn Burge............................

Mr. Herbert 8S. Gormley...

Dc I OF I aos a scence.

I ie I sia veloc ucbiedewabedinndsbaecone

Miz. Seery Teewerty..................-.2..-.........

Mr. Harry Vogel.......................

Mr. Wm. F. Holmes

Mr. Wm. Emmitt Sie. - | Ra Eh

Mr. L. LeGrande Johnston.....................................

Page

16, 102-104, 137

16-17

83, 104-105

85, 105

85, 105-106

By SG

_ &6, 97-102

icssdinivcwe OO

109-111, 115-116

_ 111-112

112

112-113

_... 113-114

114-115

115

116

INDEX v

INDEX TO CASES AND AUTHORITIES CITED.

Page

American R. Co. vs. Didrieksen, 227 U.S. 145,

149 G1

American R. Co. vs. Birch, 224 U. 8., 547 79

Austin vs, Boston & Maine R. (Mass.), 41 N. EL,

288 13S

Atlantic & Pae. R. Co. vs. Laird, 164 U. 8., 393,

395 79

Atlantic Coast Line vs. Burnett, 239 U.S. 199,

201 83

Bailey on Personal Injuries (2d Id.), Vol. 2.

See. 3538, 356 (Note 32) 148-149, 150, 160

Baltimore & Obio R. Co. rs. Stricker, 51 Marvy-

land, 47 133

Bank of United States rs. Smith. 11 Wheat.. 171.

174 16)

Baugham rs. N. Y. P. & N. R. Co., 241 U.S., 237. 124125

Bavlor vs. Del. L. & W. R. Co., 47 N. J. 1... 28 133

Bell ys. Railroad Company, 168 Mass., 443: 47

N. E., 118 120, 126

Bengston rs. Chiengo & St. PLR. Co., 47 Minn..

486 129, 100

Bouvier’s Law Dietionary, Vol. 2 35

Bovd vs. Harris, 176 Pa. St., 484 136

Brewer rs. Railway Company, 45 Hun, 595: 26

N. E., 325; 11 1. R. A., 485; 21 Am. St. Rep.,

47 32

Bridge Preprietors rs. Hoboken Company, 1

Wall., 116 1]

Brossman rs. Railrond Company, 113 Pa. St., 490:

6 Atlantie, 226 131, 133

Brown rs. Railway Company, 60 Towa, 61 123

Buel rs." sfer Co., 45 Mo., 568 7]

Buntin es. icaulway Co., 41 Federal, 744, 749 71,82

vi INDEX

Page

Butler vs. Frazee, 25 App. D. C., 392 148, 160

Carbine vs. B. & R. R. Co., 61 Vt., 348 132, 160

Carr vs. Grand Trunk Ry., 152 Mich., 138 136

Central R. R. of Ga. vs. Lippman, 110 Ga., 665,

50 L. R. A., 673 32

Christy vs. Farlin, 49 Mich., 319; 15 N. W., 607 71

Clarke vs. Holmes, 7 H. & N., 937 138

Crofford vs. Cathran, 2 Sneed, 492 71

Crowley vs. Pacifie Mills, 148 Mass., 228; 19

N. It., 344 148

Dan. Ch. Pl & Pr., 3608 65, 96

Davidson rs. Cornell, 132 N. Y., 228 143

DeForest vs. Jewett, 88 N. Y., 264 148, 144

DeLuca vs. Hughes, 96 Federal, 923,925 4)

DeYturbide rs. Metropolitan Club, 11 App. D.C.

1SO 159

Drake vs. Auburn City R. Co. (N. Y.), 66 N. F.,

121 138

Dresser’s Employers’ Liability, Sec. SO 4?

Dudley vs. Price’s Adm’r., 10 B. Mon., 84, 88 70

Engine Works vs. Randall, 100 Ind., 293 139

Kylenfeldt rs. Steel Co., 165 TIL, 180: 46 N. 1s,

266 7|

Fallon vs. West End. St. Ry., 171 Mass., 249; 90

N. E., 536 33

Farren vs. Old Colony R. Co., 143 Mass., 197, 200 180

Flatley vs. Railroad Co., 9 Heisk., 280, 237 71

Fleming rs. St. Paul & D. R. Co., 6 N. W., Rep.,

448 133, 139-140, 160

Fletcher vs. Phila. Traction Co., 190 Pa. St., 117 187

Funk vs. St. Paul St. Ry., 61 Minn., 4385; 52 Am.

St., 608; 29 L. R. A., 208 33, 34

Garrett vs. L. & N. R. Co., 235 U.S., 308. 63, 96, 119, 155

Gibson vs. Erie R. Co., 63 N. Y., 449; 20 Am.

Rep., 552 133, 137-138, 143, 144, 160

Gila Valley R. Co. vs. Hall, 282 U.8., 98 124, 141

INDEX vii

Page

Godfrey vs. St. L. Tourist Co., 107 Mo., 193 33

Gould vs. Railway Co., 66 Lowa, 590 r 20, 123, 155, 160

Greenleaf on Evidence, Vol. 2, Sec. 21] 33

Great Northern Ry. Co. rs. Capital Trust Co., U.S.

Adv. Op., 1916, pp. 41, 42 82

Harrison vs. Nixon, 9 Pet., 483 65, 96

Hayden vs. Smithville Mfg. Co., 29 Conn.. 548 144

Hayden vs. Welch, 52 IIL, 183 133

Hayzel vs. Columbia Ry. Co., 19 App. D. C.,

359, 371 14S

Hickey vs. Taaffe, 105 N. Y., 26: 12 N. E.. 286 143

Hughes vs. Ind. Trae. Co (Ind.), 105 NX. BE. , 537 4]

Hurst vs. Detroit City Ry., S4 Mich., 539 65, 77, 95

Hutchison on Carriers, See. 47 333

Illinois Surety Co. vs. Peeler, 240 U. S., 214 78

Jacobs vs. Insurance Co., 86 Lowa. 145; 53 N. W..,

101 ra

Jacobs vs. Southern Ry., 241 U. S., 229 124, 126, 141

148, 150, 154

Jarvis vs. Hiteh, 161 Ind., 217: 67 N. M., 1057 42

Johnson rs. Met. St. ty. sa .. LOA Mo. App., 588 33

Johnson rs. Railroad Co.. 43 Minn., 222 ; ee

‘A., 419 36

Kain vs. Smith, 89 N. Y., 375 144

Kohn vs. MeNulta, 147 U. 8.. 238 145-146. 160

Ladd vs. Brockton St. Ry. Co., 62 N. E.. 730 126

Lavalee rs. Railway Co., 40 Minn... 263: 41 N. W.,

N74 oe)

Lemoine vs. Aldrich, 177 M: ass., 89;58 N. E.. 178 126

Louisville & P. R. Co. vs. Louisville C ty Ht. Co,,2

Duv. (Ky.), 175 10

Lovejoy rs. Railroad Co., 125 Mass.. 79 119. 131

Lundquist ps. Duluth st. Ry. Co., 65 Minn.

387, 67 N. W., 1006 33

MeAdow os. Kansas City W. Ry. Co., 164.8. W..

188; 240 U.S., 51 44, 51

KBE v1 , — —_

MEE TRRALTEE AGS nee EG WOT TLE

Vill INDEX

Page

MeDonald vs. Nebraska, LOL aa 171, 177, 178 SO

VeCGovern vs. Cent. Vt. R. Co., 123 N. y.. 280;

95 N. 1., 373 144

MelLeod rs. Chicago, ete., Ry. Co., 125 Lowa, 270 33

MeLeod rs. N. ¥. C2. & H. R. R. Co., 191 Mass.,

9eq 77 N. EL, 715: 114 Am. st. Rep. 625 126-12s

Michigan Cent. R. s. Vreeland, 227 U. 8., 59 58-60, SO

Minor vs. Mechanics i ank, 1 Pet.. 46 (Yt)

Mohr vs. Lemle, 69 Ala., TSO G9

Mo. K. «& T. R. Co. vs. Wulf, 225 U. 8., 570 7TS-SO

Mondou vs. N. Y.,N.H. & H. Be Ca: 273 0. 8:, ] 7)

Myers rs. Railroad Co., 95 Federal, 406 er ae BP

CG. A., 13¢ 31-132

Naylor rs. Railway Co., 53 Wise., 661; 11 N. W..

24 39

Nelson vs. Ist Nath Bank, 139 Ala., 578: 101

Am. st. Rep., 52. 55 0)

X.Y. C. & St. L. vs. Ostman (Ind.), 45 N. E.,

O52 120-121

New York Cent. & H.R. R. Co. vs. Shirley, 120

N. Y. (Supp.), 192 32

Newcomer vs. Reedy, 9 Gill., 265 76

Newton vs. Allis, 12 Wise., 378 71

Norfolk Trae. Co. vs. Ellington, LOS Va., 249;

ei 3. E:. TH; 10 | A Ee 117 33, 36, 41

Omaha & Couneil Bluffs st. Ry. Co. vs. Inters.

Com. Comm., [91 Fed., 40, 230 U. 324 38, 438 a

48, 49-51, 92

Owen rs. Railroad Co., 1 Lansing, LOS 133

Patillo vs. Allen-West C omm. Co., 131 Fed., 680 0

Perigo rs. Railway Co., 52 Towa, 276 136

Phalman rs. Det. City Ry., 122 Mich., 232 135

Pikesville & E.R. Co. rs. State of Maryland, 8S

Mal., 563: 42 Atl, 214 134-155

Pittsburgh, tL ck Ce 30. 08: sentmiver, zt

Norris, 280 : &

INDEX ix

Page

Power Co. vs. Murphy, 115 Ind., 566; 18 N. E.,

30 123, 160

Railroad Company vs. Campbell, 170 Tl, 1638,

167; 49 N. E., 314 71

Railroad Company vs. Jones, 149 TIL, 361; 37

N. E., 247 71

Railroad Company vs. Smith, 81 Ala., 229, 1

South., 723 71

Railway Company vs. Cox, 145 U. S., 594, 601,

606 71

Railway Company vs. Downey, 40 App. D. C.,

147; 236 U.S., 190 38, 40

Railway Company vs. Ellis, 165 U. S., 150 35

Railway Company vs. Somers, 71 Texas, 700 130

Randall vs. Balto. & O. R. Co., 109 U.S., 478 146

Reardon vs. Balaklala Cons. Copper Co., 193 Fed.,

189 80

Reese vs. Phila. & Reading R. Co., 239 U. S.,

463 121-122, 157

Riley vs. Galveston City Ry. Co., 13 Texas Civ.

App., 247 33

Rock vs. Retsoff Mining Co., 40 N. Y. St. Rep.,

596. 136-137

Ryan vs. Railroad Co. (Mass.), 47 N. E., 877

119, 124, 160

Sams vs. St. L. & Merrimac R. Co., 174 Mo., 53;

’

61 L. R. A., 475; 73 S. W., 686 ....00, 34, 41

Scanlon vs. Boston &e R. Co., 147 Mass., 484:

9 Am. St. Rep., 733; 18 N. E., 209 127, 128

Schulze vs. Fox., 53 Md., 37 75

Seovill vs. Glasner, 79 Mo., 449, 453 71

Seaboard Air Line vs. Horton, 233 U. S.. 492 140-141,

148, 150, 160

Seaboard Air Line vs. Renn., 241 U. S., 290 76

Sicard vs. Davis, 6 Pet., 124 71

ea ney a ee a - »

x INDEX

Page

Southern Pac. R. Co. vs. Seley, 152 U.S., 145.146, 148

Southern R. Co. vs. Crockett, 234 U.S., 725. 141, 148

Spokane, ete., R. Co. vs. United States, 210 Fed.,

ce AG AD SA” SRR Fp na wa ed ACS 44, 45

Spokane, ete., R. Co. vs. Campbell, 217 Fed., 518;

241 U.S., 497 Fase Re, Ne

St. Louis, I. M. & S. R. Co. vs. Craft, 237 U.S.,

648 _.61, 80, 87-89, 98

Stewart vs. Ohio River Co. (W. Va.), 20 S. E.,

922 139

Stewart vs. B. & O. R. Co., 168 U.S., 445... 79

Sullivan vs. Cap. Trae. Co., 34 App. D. C., 358 159

Sweeney vs. Berlin & J. Env. Co., 101 N. Y., 520,

5 N. E., 358, 54 Am. Rep., 722 143, 144-145, 146

Texas & Pac. R. Co. vs. Aldrich, 170 U.S., 665 141-144

148, 160

Texas & P. R. Co. vs. Cox, 145 U.S., 593, 603 79

Thain vs. Old Colony R. Co., 161 Mass., 353; 37

N. E., 309 129, 151

‘Todd vs. Old Colony R. Co., 3 Allen, 18 151

Tuttle vs. Grand Haven & M. Ry., 122 U.S.,

189 128-129, 146-147, 160

Union Pacifie Railway Company vs. Wyler, 154

U. S., 285, 289, 298 71, 72, 80, 83

United States vs. B. & O. S. W. R. Co., 226 U.S.,

14 _ 44, 47, 48, 52

Van de Haar vs. Van Domseler, 56 Lowa, 671, 676;

10 N. W., 227 71

Wash. & G. R. Co. vs. MeDade, 1385 U.S., 570-146, 148

Wells vs. B. C. R. & N. R., 36 Lowa, 520 132

Wharton on Negligence, Sec. 214 133

Whalen vs. Gordon, 95 Federal, 305 70

Whatley rs. Zenida Coal Co., 122 Ala., 118, 26

South, 124 42

DANA OBO em agy

INDEX

Williams vs. Del. L. & W. R. Co., 116 N. Y., 628;

22 N. E., 1117

Willson vs. Rock Creek R. Co., 7 Inters. Com.

Rep., 83

Wilson vs. Lake Shore R. Co., 145 Mich., 509

Wooley vs. Railroad Co., L. R., 2 Exeh. Div., 389

1 Ene. Pl. & Pr., 569, 570

25 Cye, 1308

31 Cye, 413

Page

143

136

134

TAO DEA nd a a Nene Sig

FEARING Horiba AS

IN THE

Supreme Court of the United States

OcTOBER ‘TERM, 1016.

No. 826.

WASHINGTON RAILWAY AND ELECTRIC COM-

PANY, PLAINTIFF IN ERROR AND

PETITIONER,

< A) .

ANN CATHERINE SCALA, ADMINISTRATRIX OF

THE ESTATE OF ALVIN JOSEPH SCALA, DE

\ND RE

CEASED. DEFENDANT IN ERROR

SPONDEN'T.

In Error and on Petition for Certiorari to

the Court of Appeals of the District

of Columbia.

STATEMENT.

Phe Vlamtuf in ierror and Petitioner, who was the de

fendant below, herematter referred to as the Appellant, is

street railway corporation originally incorporated under

an A\et of Congress approved July 29, 1892 (27 Stats..

\et of Congress of August 25, 184

526), as amended |

by Net of Congress of

urther amended

Is St; ts:. $92

June 3. Psu6 (29 Stats. 2469, and Act of Congress of June

£900 (31 Stats... 270)

sod! 1

nied lasGibiy

Sections 1, 2 and 3 of the Acts of July 29, 1892, and

August 25, 1894, were enurely superseded by like sections

of the Act of June 3. 1896, which incorporated the appel-

lant under the name of the Washington and Great Falls

Electric Railway Company, and authorized it to construct

and operate a continuous line of single or double track

railway and to operate the same by electricity through and

along the several named streets, avenues and roads (.\ct

of July 29, 1892, 27 Stats., 526), “hegmning at a passenger

station to be erected and maititained on the square bounded

by Prospect, 35th, M and 36 streets, northwest * * * thence

westerly along Prospect sireet™ and along and over certain

other streets and roads named “te Cabin John Creek.” re-

turning thence along the same line by return tracks to the

place of beginning (.\ct of June 5. 1s8G. 2 Stats., 246),

with the privilege of constructing and operating certain

specifically named branch lines; provided, however, that

said railway company “may contract with any siveet rail-

way company in the State ot Maryland or the District of

Columbia owning or operating commecting oF intersecting

lines for the joint management, lease or Pure hase of said

line or lines and operate the same in connection and as an

extension with its present line.”

Section 1 of the same act as finally amended by Act of

June 5, 1896, further provided that

“No steam cars, locomotives or passenger er other

cars for steam railzeays shall ever be run over the

tracks of said railway within the said District ol

Columbia or on said lands ' The provisions

of this act as far as appheable shall apply to any

extension of this railway in the State of Marvland

that may be granted by said State

Said section further required

“The gauge of the track to be the same as that

of the Washington & Georgetown Railway ; and the

said Washington and Great Falls Electric Railway

Company shall, where its tracks run on or across any

street or road which is under the jurisdiction of

the Commissioners of the District of Columbia. pave

the same between the rails and sets of rails, and

two feet outside thereof, with such material and in

such manner as shall be approved by the pri per au-

thorities. * * © The said corporation shall oper-

ate its said road by electric power, and for this pur-

pose it is hereby authorized to erect such poles and

aerial lines as may be necessary for the proper con-

duct of said power. * * * Said corporation shall

at its own expense maintain electric lights during

the hours after nightfall that its cars shall run, and

at least until twelve o'clock ante-meridian. which

lights shall he located so as te light all roads on and

across which the railway shall pass and such other

points along the proposed route as the Secretary of

War shall direct. * * * Efficient signals. by gone

or bell, shall be made by every ear before and during

the crossing of the Conduit road.” * = * * and

“the fare for riding over the said road shall not ex-

ceed fen cents cach way per passenger.” and this

amount may be divided into divisions of five cents

each.

Section dof the Net of July 28. 1802, provides :

“Nor shall it cross any steam railroad at grade.”

Section 4 of the Amendatory Act of August 23.

ISS (28 Stats. 4920, provided that “the street rail-

way compamics mentioned in this act, and hereatte

all street railway companies in the District of Colin

bia, respectively, shall bear all the expense that may

he incurred by the United States in making and in

~pecting such changes to the water mains, fixtures.

or apparatus of the Washington Aqueduct as may be

rendered necessary by the construction or extension

of such several roads.”

By Act of June 5, 1900 (31 Stats. 270), this same com-

pany, then known as the Washington and Great Falls Elec-

tric Railway, together with the Anacostia & Potomac River

Railroad Company. the Brightwood Railway Company of

the District of Columbia, the Capital Railway Company,

the City and Suburban Railway Company, the Columbia

Railway Company. the Georgetown & Tennallytown Rail-

way Company, and the Metropolitan Railway Company, all

of which were strect railzay companies pure and simple,

previously incorporated under acts of Congress, Were au-

thorized

. “Under the authority of this act * * * to enter in-

to contracts with each other or with any of the others

for the use of their respective roads or routes or

any part thereof; * * * Provided, that in Case any

corporation enters into any such contract it is hereby

authorized to change its corporate name to any other

corporate name not then lawfully used by any exist-

ing corporation incorporated or organized in the

said District.”

Section 2 of the same act provides that the appellant

might

“acquire and hold stock im any séreet railway cor-

poration specifically named above, with which it is

authorized by the terms ot this act to enter ito a

contract for the use of its read or route,”

and might also agree with any such corporation

“for the purchase of the estate, property, rights and

franchises of such other corporation * * * Upon the

execution of such contract of purchase * * * the

estate, property, rights and franchises of the cor-

poration selling the same shall vest in and be held

and enjoyed by the Washington and Great Ialls

Klectrie Railway Company as fully and entirely,

without change or diminution, as the same were be-

fore held and enjoyed by the company selling the

same * * © in its corporate name or in such other

name as it shall adopt by the filing of a certificate

as hereinbefore authorized * * nd provided

further, That the right or privilege granted By sec-

tion one of the act approved July 29, 1892 * * by

Which said company is authorized to charge a fare

of ten cents per passenger * * * be and the same is

hereby amended so as to limit the rate of fare on

said line of railway to tive cents per passenger: and

* * * is hereby required to sell tickets at the rate of

six for twenty-five cents, each good for the trans-

portation of one passenger over the whole or any

part of its said line of railway authorized and de-

scribed by said act within the District of Columbia.’

Pursuant to this act. the Washington and Great Falls

lectric Railway Company, having acquired several of the

street railways above mentioned, changed its name to the

Washington Railway and Electric Company, which is this

appellant.

The appellant contends, first, that it: was thus ineor

porated as a street and suburban carrier of passengers only

and not as a common carrier by railroad within the mean-

ing of the Employers Liability \ct: and, second, that it en-

gages inno business other than that of a strictly street and

suburban carrier of passengers.

\lvin Joseph Scala, the appellee's decedent, entered the

employ of the appellant as a trolley car conductor in June

12. upon his written representation that he was then over

twenty-one years of age. This representation was endorsed

in writing by his father, Francis Wm. Seala. one of the

beneficiaries in this suit (Ro po is). This representation

was at the trial sworn to be false by both beneficiaries in

this suit, his mother, \nn Catherine Seala (R.. p. 18), and

his said father, Francis Wm. Seala i R.. p. 34), who both

eH25 wh -

‘ i WS tle

stated that he was but eighteen years of age at the time of

his death.

Following his employment he wes first assigned as an

extra conductor on the Cabin John division of the appel-

lant’s lines, operating during the summer months from

14th and East Capitol streets, in the City of \Vashington, to

Cabin John Bridge. in the State of Maryland, past the scen

of the accident, and Glen Echo Park, and made 22 runs as

such extra conductor between the time of his employment in

June, 112. and September, 1912, at which time, owing to

the fact that Glen Echo Park was closed, he made ne further

runs on that part of the line that year. The amusement park

was opened again in May, 115, and young Seala was again

assigned to this line and served as 4 regular conductor thet

on from the opening of the season until July s. Tbs, the

day of his death. The reeord shows that during the sum

mer of 1912 he made 22 round-trips over this line and past

the scene of the accident. and daring the summer of 1915,

up to and including July , 1913, the day of his death. he

made 72 round-trips additional, making a total of fb round

trips. or ESS single trips, past the point at which he wir

killed. thus showing ample opportunity to tearn hy observa-

tion the conditions existing on the entire line.

Om the evening of July 8. 1913, while passing MeCoy'

Station. which is between 36ih street and Glen Keho Park

voung Seala, according to the uncontradicted testimony of

the only actual eye-witness to the occurrence, who was intro

duced by, and testified on behalf of, the Appellee, while

passing along the rumning-board of an open summer car,

from some unknown mishap lost his footing on the run

ning-board w hile his car was in motion, which c¢ aused hin

to slip and his body te swing far bevend the usual extent

of the sides of the car, and while in this position, and strug

gling to regain his foothold, he was struck; not on the head

but about the “rump.” by one of the trolley poles located

four feet four inches trom the nearest rail, and three feet

eleven inches from the side of his car, with such violence

that his hold on the car was broken and he fell to the

ground; his hip was crushed, and he died—without recover-

Ing Consciousness-— within thirty munutes after the accident.

His mother, \nn Catherine Seala, qualified as his \dmin-

istratrix, and in February, 1944, instituted her action at law

against this appellant for $20,000.00 damages.

The original declaration contained four counts. The first

two were each for $10,000 only and were evidently asserted

under the provisions of the District statute giving a right

of action to the personal representative of a decedent whose

death was the result of negligence (District of Columbi:

Code, See. 1301). The third and fourth were each for

$20,000 and were as plainly brought under the provisions of

the Federal Emplovers Liability Law of 1908 as amended,

but with no allegations or demands justifving a recovery for

conscious pain and suffering. MIL four counts relied on pe-

cuniary damage to the statutory beneficiaries, the first two

for the benefit of the father alone, the last two for both

parents.

Kach of the first two counts alleged the appellant to he

“a COMMON Carrier af passengers for hire operating

certain lines of railways in the said District and State

propelled by clectrieity, ruaning and conducted on

overhead wires above the cars ” sf supported

by cross wires attached to upright posts or poles

planted or placed in the ground on the outside of

each track 2"

being run and operated anionye other streets, lines and places

on and over certain named streets in the City of \Vash-

ington,

“thence westwardly over neht of way or suburban

line or termtory and ¢ mntr, to Glen Echo and Cabin

Johns Bridge in the County of \lontgomery in the

State of Maryland ; that said deceased

Se Te

had been and was employed by the defendant as a

conductor on one of the summer cars of the detend-

ant operated over the line aforesaid, and in the per-

formance of his duties as such conductor was re

quired to step, walk and move along the running-

hoard or step and board along the outer side of the

summer cars and to cateh hold on to the stanchions

+ holders affixed to the uprights at the end of each

seat: * * * that the defendant did negligently,

carelessly and in a dangerous manner plant or place

said upright posts or poles along the outer tracks ot

said line foo near to the cars and to the running

hoard * * * deaving only a distance of to-wit

seventeen inches between said posts or poles and the

stanchions or holders; “ * * and

while employed as aforesaid and operating a sum

mer ear of the defendant * running west-

wardly over said tri ick * * * at what is known

as MeCoy's Station * * * and while lawfully

in and upon the ste ppmg- -hoard of said car, and

while in the performance « f Ins duties as aforesaid,

and while inthe Aenea of due eare, was hit or

struck by one of the said nae or poles planted by

the defendant too near to the running-board

as aforesaid * * * (and was thereby knocked

trom said car * *— * and his backbone or spine

. crushed and broken and driven into his

abdominal cavity, thereby causing immediate and

profuse hemorrhages in direct consequence whereot

the deceased died * 8 within one hour after

being hit and struck; * * * that the deceased

was unmarried and * * *— cighteen years of age,

and left surviving him this Plamtiff, his) mother.

and Francis Wim. Scala, his father, as his only next

of kin. with whom he resided and to whose support

he contributed, and who by reason of the wrongtul

act, negligence and carelessness of the Defendant a>

aforesaid, resulting in the‘death of the said deceased,

has suffered and will in the future suffer great loss

and damage. —

Nir te PRP TOP A Ae in Rpiabls Sm Y SHOE ER

It will be observed that these two counts, drawn con

fessedly under the District statute which permits recover)

for pecuniary loss alone, alleged this pecumiary loss as

accruing solely to the father.

The third and fourth counts are substantially similar to

the first and second except that the appellant company is

leged to be

“a common carrier engaged in trade and commerce

in said District and State. owmmg and operating

certain lines of railways in said District and State

propelled by electricity conducted on overhead wires

above the cars whieh overhead wires are upported

by CTOSS Wires attached lo upright posts or poles

planted or placed in the ground on th outside of

each track,”

instead of “a commen carrier of passengers”

gaged. The duty of the appellant is alleged im substantially

likewise en

the same terms, and likewise its breach, to-wit, that

“wholly unmindtful of its duty im the premises, did

negligently, carelessly and ina dangerous manner

plant or place said upright posts or poles along the

outer track of said line too near to the ears and to

the running-board” (hk. p. 6),

The third count alleges that the decedent,

“while in the performance of his duties as atore

said, was hit or struck suddenly with foree and vio

lence on the right side of his head lw

one of said

posts or poles planted too near to the

running-board * * * as aforesaid. to-wit, the

distance of only seventecn inches.”

The fourth count differs from the third only in that it

omits the allegation spectiving that the blow was received

on the side of the head. and me rely alleges generally that

he was struck and thrown from the car

Pee OPS

Both the third and fourth counts as originally filed al-

leged that the decedent

“was unmarried, was eighteen years of age, left

surviving him the plaintiff, who is his mother, and

Francis Wm. Scala, who is his father, with whom

he resided, and to whose support he contributed, and

who by reason of the wrongful act, negligence and

carelessness of the defendant * . have sut-

fered and in the future will suffer great loss and

damage,”

and concludes :

“Wherefore the plaintiff savs that by reason of

the premises and in accordance with the statutes in

such case made and provided, the Defendant is lable

for an action of damages and a right of action has

accrued to the plaintiff as personal representative of

said deceased on behalf of and for the benefit of the

said parents of the deceased.” and lays the damages

at $20,000.00.

When these four counts are contrasted it is clear that

the first two are brought under the District: statute and

are for the benefit of the father alone. The clauses alleg-

ing the accrual of the action and resulting damage to the

beneficiary are in the singular number and allege that Fran-

cis Wm. Seala. “as his only next of kin, * * * has suffered

and will in the future suffer great loss and damage,” where-

as the third and fourth counts allege that by reason of the

death the parents “of said deceased fave suffered and will

in the future suffer great loss and damage.” and that “by

reason of the premises and in accordance with the statutes

in such case made and provided,” “a right) of action

has accrued to the plaintiff as the personal representative

of said deceased.”

It will be also observed that neither of these counts as

originally filed contained any allegation of pain or suffer-

ing to the decedent as a ground of action, and even as

amended subsequently, as will hereafter be pointed out,

contained no allegation that by reason thereof any cause of

action had ever acerued to the decedent which had sur-

vived under the statute for the benefit of any one, or that

any such claim was to be made the basis of the recovery

sued for,

No demurrer was filed to this declaration: \ plea ot

the general issue was tiled on March 2, 1914, and issue was

joined thereon on April 6, 1914,

On October 20, 1915, after this case had been assigned

for trial, and after the statute had barred an action for

damages to the decedent, the appellee. without objection

from the appellant, was permitted to amend the fourth

count of the declaration by inserting the words “aid cans-

ing him to suffer intense pain and injuries” after the words

“profuse hemorrhages” and before the words “in. direet

consequence whereof the deceased died,” as appears on pave

eight of the Record. This still left the declaration without

any allegation or any attempt to so change the allegations of

the declaration as to assert that a right of action had ac-

crued to the decedent prior to his death, which, under the

Amendment of 1910, was for the first time allowed to sur-

vive to the personal representative of the decedent. ‘Ihe

only assertion of damage sought to be recovered by the

declaration as then amended. still was for the pecumary

injury alone which acerucd to the parents by reason of the

loss of the contribution to the support of the parents which

had resulted from the death.

All of the counts assert the right of action and

claim in the following words ;

“Wherefore the plaintiff savs that by reason ot

the premises and in accordance with the statutes in

such cases made and provided the defendant is lia

ble for an action of damages and a right of action

has accrued to the plaintiff as the personal r presen-

tative of said deceased on behalf of and for the bene-

fit of the next of kin” (in the first and second counts,

and ‘on behalf of and for the benefits of the said

and ‘on behalf of and for the benefit of the said

counts) ‘and accordingly bring this suit and claims’

in the first and second counts $10,000, and in the

third and fourth counts ‘the sum of $20,0000 ~

No new pleading was filed to this first amendment, and

no opportunity to plead afforded so far as the record shows.

On October 27, 1915, with the pleadings in this condi-

tion, the trial of this case was commenced.

After the jury was empaneled and sworn to try the

issues between the parties, appellee's counsel stated that

she elected to proceed for the purposes of the trial under

the third and fourth counts of the declaration and the

first and second counts were withdrawn (Ree., 6. 17).

On the completion of the appellee's testimony the ap-

pellant by counsel moved the Court to instruct the jury to

return a verdict in its favor—

(a) Upon the ground that the evidence was not sul-

ficient to maintain the case stated by the appellee inher

declaration ;

(b) ‘That as a matter of law the pole situated thirty

inches from the stanchion under the circumstances shown

in this case was far enough away to relieve the company

from any negligence ;

as the result of a risk assumed, and

‘d) That there was no evidence to sustain any other

assumption but that decedent’ was injured as the result

of losing his foothold on the running-he ard.

But the court overruled the motion, to which action the

appellant duly excepted.

At the conclusion of the entire case the appellant re-

newed its motion to have the court instruct the jury to

return a verdict in its favor, which motion the court again

overruled, and the appellant again excepted.

The taking of the evidence was completed on October

28th (Ree. po). After all of the evidence had been con

cluded and all) witnesses discharged, and while the court

was considering the prayers offered by both sides and after

the appellee's counsel had, among others, offered their

prayers “6" and “S” (CR. pp. 62, 63), which authorized a

recovery, for conscious pain and suffering. and after the

court had stated (Oct. 29th) ta counsel for appellee that

“T think vou will have to amend before vou can recover for

pain and suffering” (Ree. p. 68). the court granted the

motion of the appellee for leave to further amend the

declaration by inserting in the fourth count after the words

“resulting in the’ the words “conser pain and suffer

and ni the.” | Rec., p. OS), over the objection «ot appellant's

counsel, upon the ground that it asserted new cause ot

action and one barred by the limitation of the statute giving

the cause of action, and because such amendinent const

tuted a surprise to the appellant who had made no prepara

tion on this question under its right to rely upen the plead

ings (Ree., p. Gs)

| then asked

The appellant excepted to this ruling. and

to.

for leave to plead to the amended declaration, which leave

was granted, and then pleaded orally and intermally “Not

Guilty” and “limitations of the statute’: and counsel ft

appellee thereupon orally demurred to the plea of the Stat

ute of Limitations, which demurrer the court sustamed. and

overruled the plea of Imitation and the appellant gam ¢)

cepted.

Thereatte the court settled the pravers tl neler

half of the appellee and appellant. The case was argues

and the court charged the jury, permitting ther el

verdict not only for the pecuniary losses sutfered

decedent, but also for the decedent's conscion in

| ei erdict im

The jury subsequently ret

suffering.

solido for $7,500, and judgment was entered elor

An appeal frem this judgment was taken to the Conrt

of Appeals of the District of Columbia upon assignments

of error to be found in the Record at pages 1 and Tet but

he judgment of the trial court was approved it

and this case is now here upen a writ of eri

dl respects,

te that judy

ment and upon the same assigninents of error, to-wit:

ASSIGNMENTS OF ERROR.

1. The court erre

for the defendant at

evidence

» ryny } - ; x

we Phe court erred: mi redusingc t wrect a verdict

fer the defendant at the clusion of all of tl

ev1ace»nce.

3. The court erred in applying the Federal Im-

ers’ Laabilitvw Law to the case stated im the

larntiff’s declaration.

THAT EUE TE

in appleine the Federal Fim

t. The court erred in app (

plan ers’ Liability Law to the pl tiffs case unde

the evidence.

>. The court erred in granting the plamtif leave

te amend her declaration after all the evidence ha:

heen completed so as to mut a recovery by the

plaintit for consetots yl sarite

6. The court erred in refusing the detend

int a continuance of the cas te ‘rnutting said

amendment.

~. The court erred in sustamine the plaintiff

demurre) to t defen its pl r tine St Liste !

led by Jenave Peowinge sand amen

Limitations — fil

ment.

S. The court erred mm crantinge the plamutts

praver No. 3-A,

%. The court

praver No, 4.

10. The court erred ‘anting the plaintiff’.

prayer No, 5.

11. The court erred in granting the plaintiff's

prayer No. 6.

12. The court erred in granting the plaintiff's

prayer No. 7.

13. The court erred in’ granting the plaintiff's

praver No. 8.

14. The court erred in refusing defendant's prayer

No. |

15. The court erred in refusing defendant's praver

No. IITA.

16. The court erred in refusing defendant's praver

No. IV.

1¢. The court erred in refusing defendant’s prayer

No. VII.

18. The court erred in refusing defendant’s piayer

No. EN,

19. The court erred in refusing defendant's prayer

No. X.

20. The court erred in refusing de“endant’s praver

No. XII.

21. The court erred in) permitting the jury to

assess damages for conscious pain and suffering

under the declaration as amended more than two

vears after the right of action accrued. °

22. The court erred in overruling the defendant's

motion for a new trial and entering judgment on the

verdict in favor of the plaintiff.

ERRORS ASSIGNED ON PETITION FOR WRIT

OF CERTIORARI.

It is also here upon a petition for a writ of certiorari in

which substantially the same objections are briefly sum

marized as follows:

1. That the defendant was not a common carrier

by railroad within the meaning of the Federal lm-

plovers’ Liability Law of 190s,

2. The entire absence of any negligence on its

part.

3. The death of decedent was caused either by his

own negligence or

aie

4. As the result of an accident, to-wit, his losing

his footing while fassing along the running-board.

5. That the risk of such injury was assumed.

6. That as to the conscious pain and suffering—

PES . °

(a) The evidence did not show that decedent had

undergone conscious pain and suffering:

(b) The Statute of Limitations barred such

claim before the declaration asserting it was amend-

ed,

THE ERRORS NOW RELIED ON ARE AS

FOLLOWS:

The evidence shows the appellant company not to be

“a common carrier engaged in trade and commerce” in

the District of Columbia and State of Maryland, as

alleged in the declaration, within the meaning of the

Federal Employers’ Liability Law of 1908.

This affirmative rests upon the testimony of Mrs. ‘Tarbell

alone, who testified that she lived along this line some time

back (Rec., p. 19):

QO. Do vou know whether they haul freight on

this line for people going up along there? A. Yes.

(Rec., p. 22.)

Mr. Geo. G. Whitney, Chief Clerk of the Washington

Railway and Electrie Company, and famikar with tts busi-

ness, testified (Ree. p. 55), that the Washington Railway amt

Mlectric Company is net engaged in hauling freight for the

public on the Glen Echo or Cabin John Bridge line and does

not publish tariffs with the Interstate Commerce Commis-

sion or holds itself out to do any such business to his

knowledge, and that he would have knowledge tf they did so

Upon being cross-examined he testified further as follows:

O. You say it does not haul anything but pas-

sengers on that line: it does not haul supplies for

people up there at times? A. I could not say it does

not haul any freight, but it does not haul any for

the public.

Q. But it does haul things ap there for people liv-

ing on that car line on its cars? A, People living on

that line? No, sir.

QO. For anybody up there? A. Not for the public.

O. What is that? A. It does not haul any freight

for the public.

QO. Who does it haul for? A. It hauls freight for

the Glen Echo Park Company.

QO. For the Glen Echo Park Company? A. Yes,

sir.

And upon being further examined on redirect examina-

tion:

Q. Does the company receive any compensation

for that service? A. It does not.

And upon being re-cross-examined :

(). It receives all the fares of people going to

Glen Echo Park, does it not? A. Of course that is

true; the railrcad company gets the fares.

©. In consideration of that it does not make any

special charge for the freight hauled up there: is

that right? A. T would not say.

QO. You would not say, but it is a fact. is it not?

A. No, sir.

QO. They own that right of Way up there. the

whole line, don't they? A. T think so. (Rec. p. 46.)

The question is raised by the action of the court in

Gy the appellee's prayers Nos. 3--\, 4, 5, 6. 7.8 (Ree

pp. G1, 62,63, 67), based upon the Federal Employers’ Li

ic Law, and the action of the court. in refusing the

appellant's praver No. VIL (Ree., p. 65). and by assign

ments of error Nos. 1,2. 4, 14, (Ree., p. 15).

SO41—2

Appellant's prayer No. VIE reads as follows (Ree., p. 69):

“The court instructs the jury that there was no

duty on the defendant company to anticipate a ney

ligent or unusual manner of performing his duty on

the part of the servant, or to render the servant sate

from injuries resulting from his negligent method

of performing his duty or from unforeseen accidents

or occurrences.’

Even if the evidence was sufficient to justify a finding

on the part of the jury that the appellant company was a

common carrier of passengers within the meaning of the

Federal Employers’ Liability Law, the court erred in

directing the jury as a matter of law that the law did

apply.

This question is raised by the appellant's exceptions t

the appellee's prayers Nos. 4.5. 6. 7. 5. all of which are

based upon the Federal Employers’ Liability Law (Ree.

pp. 61, 62, 65), and read as follows:

No. 4.

“The jury are instructed that, if they find from the

evidence that the defendant company was guilty of

negligence, and the deceased was guilty of contribu-

tory negligence, the \et of Congress under which

this suit was brought provides that such contributor)

negligence is not to defeat the pliuntils right to a

recovery altogether, but the damages shall be dinin-

ished by the jury in proportion to the amount of

negligence attribut. able to the deceased. So. if you

reach that point in vour deliberations where vou tind

it necessary to consider the defense of contributor)

negligence, the negligence of the deceased is not a

bar to plaintiff's right to recover in this suit, but it

goes by way of diminution of damages in proportion

to his negligence, as compared with the combined

negligence of the deceased and the defendant. In

other words, if the jury find that the defendant was

guilty of negligence in this case, and that the de-

ceased was guilty of coutributory negligence, the

plaintiff has a right to recover damages, but from

these damages the jury should exclude in its verdict

a proportional part of the damages corresponding to

the deceased's contribution to the total negligence.

The jury are also instructed that the burden of prov-

ing the contributory negligence of the deceased is

on the defendant, and that before the jury are justi-

hed in diminishing the di unages on account of con-

tributory negligence of deceased, they must first find

that the contributory negligence of deceased is es-

tablished by a preponderance of. the evidence.”

No. 5.

“On the question of assumption of risk, the jury

are instructed that there can be no recovery in this

case if the deceased assumed the risk of injury. .\s-

sumption of risk is not the same as contributory

negligence. Contributory negligence involves the

notion of some fault or breach of duty on the part

of the employe. On the other hand. the assumption

of risk, even though the risk be obvious, may be free

from any suggestion of fault or negligence on the

part of the employe. And, in this ease. you are in

structed that the deceased only assumed such danvers

as were normally and necessarily incident to his oc

cupation ; but that he did not assume risks of another

sort, net naturally incident to his occupation and

arising out of any failure of the defendant company

to exercise due care with respect to placing the ‘Se

ley pole a safe distance from the running-board «

the car. Risks of this sort, arising out of anv negti-

gence of the defendant. the jury would not be justi

fied in finding were assumed by the deceased, unless

they find first that any negligence of the defendant

in placing that particular pole the distance it was

from the running-board, and also the risk of danger

therefrom to a person passing while on that running-

board, under the circumstances of this case, were

both alike known to the deceased, or were both so

obvious that an ordinarily prudent person under the

circumstances would have observed and appreciated

it.”

No. 6.

“The jury are instructed that. if they find in favor

of the plaintiff, then in assessing the amount of dam-

ages for the benefit of the mother and father, they

may assess these damages beth on account of any

conscious pain and suffering and agony of their son

from the time of the injury to the time of his death,

and also for any loss and damage resulting to them

financially by reason of the wrongful death of their

son. In other words, the plaintif. if vou tnd in her

favor, is entitled to have the damages for the benefit

of the mother and father assessed by vou on recount

of two claims which are quite distinct. no part of

either being embraced in the other. One is for the

wrong to the injured person, the son. and is con-

fined to his personal loss and suffering before he

died, while the other is for the wrong to the bene-

ficiaries, his mother and father, and is confined

to their pecuniary loss through his death. One he-

gins where the other ends. . Yoru cannot. however,

assess the total ameunt of damages for both claims

to exceed the sum of $20,000. and vou need not, if

you find a verdict for the plaintiff, render a separate

verdict for each of the two claims, but one amount,

not exceeding $20,000, to embrace the amounts found

by vou for both claims.

No. 7.

The jury are instructed that. if they find in favor

of the plaintiff, then tn assessing the damages for

the benefit of the mother and father resulting to

them financially by reason of the wrongful death of

their son (which damages are separate from any

damages you may find for the son’s pain and suffer-

ing before he died), you are entitled to take into

consideration the relationship between them of par-

ents and son, as a proper circumstance for considera-

tion in computing these damages, which are not de-

pendent upon any legal liability of the son to support

his parents. The jury may also take into considera-

tion any testimony concerning the personal qualities

of the son and the interest he took in his mother and

father, and any testimony concerning the care, at-

tention, consideration, maintenance and support,

Which he reasonably might have been expected to

give to his parents, but to include the pecuniary

value of all these in the damages. In other words.

the jury are entitled to take into consideration in as-

sessing the damages on this clajm, which is separate

from the claim for the son's suffering and pain be-

fore he dies, only such losses as the jury may find

result to the mother and father because they have

been deprived of a reasonable expectation of pe-

cunary benetits by the wrongful death of their son.

and the fact that the son was not legally liable at

the time of his death, and would not have been

legally liable atter he attained his majority to sup-

port his mother and father, cannot defeat their claim

for damages.

No. 8.

“The jury ave instructed that, if they find in favor

of the plaintiff. then in assessing the damages for

the benefit of the mother and father for the son's

personal loss and suffering before he died, which are

separate from any damages they may find resulting

to them financially by reason of the death of their

son, vou are entitled to take into consideration anv

testimony in the case concerning any conscious pain

and suffering endured by the son in the period be-

tween injury and death. In other words, if the jury

find in favor of the plaintiff, then, in addition to any

damages tor pecuniary loss to the parents, the plain-

tiff is entitled to recover damages for the benefit of

the mother and father for any conscious pain and

agony which the jury may find their son endured in

the period between his injury and death: and, in eom-

puting those damages for the benefit of the mother

and father on account of any suffering of the son,

those damages are to be measured by the jury not by

che suffering of the mother and father in contemplat-

ing or grieving over any pain their son may have sut-

fered, but those damages are to be measured by

the jury from the view point of the son: that is to

say, the jury may compute such damages as will be

reasonably compensatory to the son for his conscious

pain and agony which the fury may find he suffered

in the period between injury and death, and the fact

that that pertod may have been brief does not, of

itself, defeat the claim for damages on account of

the son's conscious suffering.

TTI.

The court erred in permitting the pleading to be

amended so as to permit recovery for conscious pain and

suffering after all of the evidence had been concluded,

all of the witnesses on each side discharged, and while

the settlement of the prayers was under discussion.

This amendment with the consequent direction to. the

jury to allow for pain and suffering should not have been

allowed—

(a) Beeause it introduced a new cause of action.

(b) Because the right of compensation for conscious pain

and suffering, if it ever existed, had been barred by the

Statute of Limitations before the amendment :

the submission of that question to the jury;

() Because even after the amendment the claim for

conscious pain and suffering was not sufficiently asserted.

ie aa

This question was raised by the exception to the action

of the court in permitting the amendment (Rec., pp. 67,

68), and is covered by the fifth assignment of error

(Rec., p. 15).

IV.

The Court Erred in Overruling the Motion of the Appel-

lant for a Continuance of the Case after the

Amendment had been Allowed.

This question is raised by the exception of the appellant

to the action of the court in overruling its motion for a

continuance, notwithstandimg the statement of the court

that “TP will frankly say that if | had been reading that

declaration from the standpoint of the defendant | would

not have suspected that it was the intention to recover

for the conscious pain and suffering of this man after he

lived, af he lived an hour atter his injuries.”

This question is raised by the exception to the ruling

of the court (Ree. p. 65), and by the sixth assignment

of error (Ree. p. 15).

¥,

The Court Erred in Sustaining the Appellee’s De-

murrer to the Appellant’s Plea of the

Statute of Limitations.

This question is raised by the exception to the action

- 4 . . . )

of the court in sustaining said demurrer (Ree., p. 68),

and by the seventh assignment of error (Ree., p. 13).

The Court Erred in Overruling the Appellant’s Motion

to Direct a Verdict in Its Favor at the Conclusion

of the Appellee’s Case and at the Con-

clusion of the Entire Evidence.

This question is raised by the exception to the action

of the court in overruling both of these motions (RKec..

pp. 41, 60). It is also covered by assignments of error

1,2 and 14 (Rec., p. 13).

VIL.

The Court Erred in Granting the Appellee’s Prayer

No. 3-A, Reading as Follows:

“The jury are instructed that the law imposes

upon every employer the duty of exercising reason-

able care in prividing a place reasonably safe and

secure in which employes may carry on and_ per-

- form their respective duties, and that if the jury

find from the evidence in this case that the defend-

ant company located and placed the pole, to wit, Ne.

187, supporting the trolley wire of the defendant

company, dangerously close to its tracks and passing

cars, and further find that the deceased conductor

was knocked from the running-board of the car hy

the said pole and thereby injured and killed, then

their verdict should be for the plaintiff, unless such

danger from the location of said pole, 1f any, was

so obvious that an ordinarily prudent person under

the circumstances would have appreciated it” (Rec.

p. 67).

This is raised by the appellant's exception to said

prayer (Ree. p. 68), and assignments of error 8 (Ree.

VII.

The Court Erred in Stating the Doctrine of Assumption

of Risk Under the Federal Employers’ Liability

Law in the Appellee’s Prayers, Nos. 3-A

and 5 ¢(Rec., pp. 61, 67).

The question is raised by the exception of the appellant

to the granting of these prayers (Rec., p. 66), and by the

eighth and tenth assignments of error (R., p. 13).

IX.

The Court Erred in Granting the Appellee’s Prayers

Nos. 6, 7, 8.

The propriety of these rulings of the court is raised

by the appellant's exceptions to the granting of these

prayers (Rec., p. 66), and by assignments of error Nos.

11, 12, 13, and are set out at length, ante, pp. 20-22.

The Court Erred in Refusing the Appellant’s Prayer

No. III-A (Rec., p. 67), which read as follows:

‘

“If the jury believe from the evidence that the

plaintiff's decedent received his injury by reason of

failure to grasp one of the stanchions or losing his

footing as he passed along the running-board, there-

by protruding his body further than usual beyond

the outside line of the car and thus causing his body

to come in contact with a trolley pole, their verdict

should be for defendant.”

The question is raised by the appellant’s exception to

the ruling of the court in refusing this prayer (Rec., p.

66, and also by assignment of error No. 15 (Rece., p. 13).

The Court Erred in Refusing the Appellant’s Prayer

No. IV (Rec., p. 64).

This prayer reads as follows:

“The court instructs the jury that some employ-

ments are necessarily traught with danger to. the

workmen engaged therein, and that such dangers

as are ordinarily incident to the employment as 1

is actually and ordinarily conducted and are obvious

to a man exercising ordinary care for his own satety

are presumed to be assumed by the employee, wheth-

er he was actually aware of them or not: and even

as to dangers and risks not necessarily incident to

the occupation but which may arise out of the fail-

ure of the emplover to exercise due care with re

spect to providing a safe place to work and which

are obvious to ordinary observation an employee, as

soon as he becomes fanuhiar with the place of hts

work and the conditions surrounding the same, with

out objection, is likewise presumed to have as

sumed."

The question is raised by the appellant's exception to

the action of the court in refusing this praver (Ree... p

u6). and by the sixteenth asstgument of error.

XI.

The Court Erred in Refusing the Appellant's ‘Prayer

No. VII, as Follows:

“The court instructs the jury that there was no

duty on the defendant company to anticipate a negh

gent or unusual manner of performing his duty on

the part of the servant, or to render the servant sate

from injuries resulting from his negligent method

of performing his duty or from unforeseen ace

dents or occurrences.”

This question is raised by the appellant's exception to

this ruling (Rec., p. 66), and is the subject of the seven-

teenth assignment of error.

XIII.

The Court Erred in Refusing the Appellant’s Prayer

No. IX.

This prayer reads as follows (Rec., 65):

“The court instructs the jury that even though

they believe from the evidence that the defendant

was negligent in placing its trolley poles in dan-

gerous proximity to its tracks, vet, if the jury fur-

ther believe from the evidence that the location of

the said trolley poles was known to the plaintiff's

decedent, or that he had been working as a con-

ductor on the cars of the defendant company pass-

ing those trolley poles at frequent intervals for sev-

eral months, and that the poles had been located at

the same place for many years prior to the accident

and that the decedent had failed to make complaint

or objection on account of the location of said trol-

ley poles, then he assumed the risk of danger from

their location, if there was any danger in it, and

the jury should return their verdict for the defend-

ant.”

This question is raised by the appellant's exception to

the action of the court in refusing said prayer ( Rec., p. 64).

and is made the subject of the eighteenth assignment of

error,

XIV.

The Court Erred in Refusing the Appellant’s Prayer

No. X.

This prayer reads as follows:

“Even though the jury may believe from the evi-

dence that the Plaintiff is entitled to a recovery as

the result of negligence on the part of the Defend-

ant, still the jury has no right to allow the Plaintiff

speculative, imaginary or conjectural damages, or

any damages which are not fairly and satisfactorily

established by a preponderance of the evidence, to

be justly compensatory for pecuniary injuries actu-

ally inflicted on and suffered by the next of kin of

the decedent as a direct and proximate result of the

decedent's death” (Ree., p. 66).

The question is raised by the appellant’s exception to the

refusal of the court to grant this prayer (Rec., p. 64), and

is made the subject of the nineteenth assignment of error.

PRELIMINARY.

Preliminary to a discussion of these points and by way

of anticipating possible objections and discussion of the

appellee. we would say that in the brief filed by the learned

counsel for appellee in the Court of \ppeals that they de-

voted at least one-half of their 137-page brief to technical

discussions as to the sufficiency of the various exceptions in

the trial court and of the assignments of error filed thereon

to support, under the rules of that court, the points made.

\ complete answer to any attempt to renew these objec-

tions here is to say that the Court of .\ppeals in its opinion

entirely ignored all of said objections, none of which in fact

were well taken, and passed upon all of the assignments on

their merits, thus holding them sufficient under its rules.

This, as we understand it. precludes the necessity for giving

any consideration here to these pure technicalities.

DISCUSSION OF POINTS OF LAW AND FACT.

The points now relied on all involve the construction and

application to the facts of this case of the Emplovers’ Lia-

bility Law of 1908 as amended ; whether the present action

can be maintained only under Sections 1, 3, 4. 5 and 9 of

——

the act, and hence involves the construction of a general

statute of the United States. as has been demonstrated in

the brief filed herein by the appellant in opposition to the

motion to dismiss, or whether it may be maintained un-

der Section 2 alone unaided by any other section, and

hence involves the construction of a local statute only.

They may best be discussed under four general headings

and subdivided as follows:

I. The application of the Federal Employers’ Liability

Law of 1908 to the case stated and to the case

proved (Assignments 1, 2, 3, 4, 14):

(a) The appellant company as a matter of law

cannot under the evidence be held to be a com-

mon carrier by railroad within the meaning oi

Section 1 of the Act of Congress of April 22,

1908 (Assignments 3, 4).

(b) At the most that question was one of fact

which should have been submitted to the jury

and not determined for the jury by peremp-

tory instructions as was done by granting ap-

pellee’s prayers Nos. 4, 5, 6, 7, 8, all of which

assumed as matter of law the appellant to be

a common carrier by railroad within the mean-

ing of the Federal Statute, and as such applied

to the case (Assignments 9, 10, 11, 12, 13).

II. The action of the trial court as affirmed by the Court

of Appeals was erroneous in respect to the question

of recovery for conscious pain and suffering (As

signments 4, 5, 6, 7, 11, 12, 13, 19):

(a) Because after all the evidence had been

taken and alli witnesses discharged, the court

undertook to allow the pleading to be so

amended as to introduce a new cause of action

(Assignment 5);

(b) Which was already barred by limitation of

the statute which permitted the cause of ac-

tion to survive (Assignments 5, 21):

(2) There was no sufficient evidence before the

jury to warrant a recovery therefor even if

properly pleaded (Assignments 11, 13, 19);

(d) The declaration even as amended failed to

assert sufficiently a claim for such pain and

suffering (Assignments 3, 19) ;

(e) The allowance of the amendment operated

a surprise and the appellant's motion for a con.

tinuance should have been granted (Assign-

ments 5, 6) ;

(f) The appellee’s demurrer to the appellant's

plea of the statute of limitations should not

have been sustained (Assignment 7).

III. There was no evidence of negligence on the part of

the appellant resulting proximately in the death of

appellee’s decedent. Hence the court erred in

failing to direct a verdict for appellant at the con-

clusion of the appellee’s evidence and again at the

conclusion of all the evidence (Assignments 1, 2, 3,

4, 8, 14):

(a) Because the appellee’s own evidence uncon-

tradicted showed that the decedent came in

contact with the pole after he lost his footing,

and that he did not lose his footing because

the pole struck him;

(b) Because the line of poles was not negli-

gently placed dangerously near the tracks as

alleged in the declaration;

to maintain permanent and visible structures

in close proximity to its tracks.

(d) Because whatever dangers resulted from

the proximity of the poles to the track was in-

herent and obvious; the decedent had ample

opportunity to observe and appreciate the

danger, and therefore assumed the risks re-

sulting therefrom.

IV. Even if there was evidence on any of the above

points to sustain a finding of the jury against the

appellant, such evidence merely raised disputed

questions of fact thereon and the court erred in in-

structing the jury peremptory in regard thereto in

the following respects:

(a) In granting appellee’s prayers 3-A and 5,

and in refusing appellant’s prayers III-A, VIT

and IX. (Assignments 8, 10, 15, 17, 18.)

(b) In refusing appellant’s prayer IV in respect

to the facts from which both knowledge and

assumption of risks are assumed. (Assign-

ment 16.)

The Court Erred in Refusing Appellant’s Prayer X.

The application of the Federal Employer's Liability Law

of 1908 to the case stated and‘to the case proved

(Assignments 1, 2, 3, 4, 14):

(a) The appellant as a matter of law cannot be

held to be a common carrier by railroad with-

in the meaning of Section 1 of the Act of Con-

gress of April 22, 1908 (Assignments 3, 4):

The charter of this appellant (29 Stats. at L.. 246), which

was mtroduced in evidence by the appellee (Ree. p. 33),

expressly prohibits the appellant company from: operating

steam cars, locomotives of passengers or other cars for steam

railways. ‘The evidence already set forth Cante., pp. 10-17)

as Well as its charter, show that it was chartered as and only

did the business of a street railway company, and carried

no freight.

The counts of the declaration drawn under the District

statute allowing actions for death resulting froma wrong-

ful act having been withdrawn, left only the two counts

drawn under the Federal Mmplovers’ Liability Law stand-

nig. and every praver granted at the instance of the appellee

iscmaimtamsable only upon the theory that the Federal lm

plovers’ Laabthtiv Law is applicable to the facts shown. ft

is therefore plain that if this act is not applicable to the

ease made out that the judgment must be reversed.

)

The position of the appellant i this respect is (ay that it

is vot a commen carrier, and (bs that the Federal [Em-

plovers’ Lvcbility Law 1s diet appheable loo electrically Oper-

ated street and suburban railways

Section 1 of the act of 1908 applies only to “common car-

riers by railroad.”

In N. Y. C.& H.R. R. R. Co. vs. Shirley, 120 N.Y.

(Supp. ), 192, it is held that common carriers are only car-

riers of property unless from the context it appears that

carriers of persons are intended, and that when carriers of

persons are spoken of they are usually designated as “com-

mon carriers of persons” or “passenger carriers,” and it was

held in that case that an act providing that no preference

for the transportation of the business of a common carrier

upon the cars, in the depots or upon the grounds shall be

granted, that the act must be limited to carriers of freight,

and hence did not include hackmen.

The Court of Appeals of New York in Brewer vs.. The

Railway Company, 45 Hun, 595, 26 N. E., 325, 11 L.

R. A., 485, 21 Am. State, 647, said:

“It is true that a carrier of persons is not sub-

jected by law to the obligations of a ‘common’ car-

rier in the strict sense of the term applicable to it.”

In Central R. R. of Georgia vs. Lippman, 110 Ga., 665;

50 L. R. A., 673, the construction of Section 2276 of the

Civil Code of that State was involved. It reads as follows:

“A common carrier can not limit his legal lia-

bility by any notice given either by publication or

by entry on receipts given or tickets sold. He may

make an express contract and will then be governed

thereby.”

The defendant sold passenger tickets expressly limiting

its liability. The court said:

“Undoubtedly if a carrier of passengers is a com-

mon carrier within the contemplation of this section

of the code, and if the term ‘legal lability’ refers to

the legal obligation of carriers of passengers to exer-

cise extraordinary diligence to protect the lives of

persons and passengers, then while the carrier may

not linut such liability by notice, he may do so by an

express contract. * * * It is significant that

under this section the carrier who may limit his legal

liability by express contract is denominated ‘a con

mon carrier.” * * * The term ‘common carrier’

did not at the common law embrace a carrier of pas-

sengers, neither does it under the definition found in

the Code in connection with Section 2276."

Bouvier, Hutchison on Carriers, Sec. 47, and Greenleaf

on Evidence, Vol. 2, Sec. 211, all define common carriers as

“carriers of personal property purely.” and that carriers of

passengers are denominated “common. carriers of passen-

gers” or “passenger carriers.”

Assuming, however, that a suburban street railway

company operated by electricity and carrying passengers only

is a common carrier, the question still remains: Is it a “rail

road” within the meaning of the Act of April 22, 1908 ?

That laws, such as the Federal mployers’ Liability Law,

are construed strictly is shown by the rulings of courts og

last resort, of Towa in’ MeLeod ws. Chicago, ete., Railway

Co. 125 Lowa, 270: Massachusetts in Fallon vs. West End

Street Railway Company, 171 Mass.. 249, 50 N. E.. ane:

Minnesota in Lundquist vs. Duluth Street Ry. Co., 65 Minn.

387, 67 NW. 1006; Funk vs. St. Paul Street Ry. Co. 61

Minn., 435, 52 Am. St., 608, 29 L. R. A., 208: Missouri in

Sams vs. St. Louis & Merrimac R. R. Co., 174 Mo.. 53. 61

R.A 475: Godfrey vs. St. Louis Tourist Co., 107 Mo.

5, and Johnson vs. Metropolitan Street Railway Com-

pany. 104 Mo. Appeals. 588: Texas in Riley vs. The Gal-

veston City Railway Co.. 13 Texas Civ. App.. 247, and Vir-

ginia in Norfolk ‘Traction vs. Ellington, 108 Va., 245. all

construing fellow servant laws similar in effect and purpase

to the Federal Employers’ Liability Law as applying purely

to steam railroads and not to street railways or suburban

8041-3

i? SS es

Paget CCea! Bawa yi toe SER

bid ace

railways operated by electricity. In Funk vs. Railroad Com-

pany, 61 Minn., 435, 29 L. R. .\., 208, mentioned above,

the law construed applied to “every railroad corporation.”

The court said:

“Perhaps it may be conceded that, technically

speaking, the term railroad would include a_ street

railway so far as its roadbed was made of iron or

steel rails for wheels of cars to run upon * *

“When the words of a statute are not explicit the

intention is to be collected from the context, from the

oceasion and necessity of law, from the mischief felt.

and the object and remedy in view. * * * Can

it be fairly and reasonably held that it was a legis-

lative intent to apply the term railroad to street r -ail-

ways? It is a matter of common knowledge that

street cars operated by cable or clectricity are more

readily managed than those operated by steam.

where long passenger and freight trains, with their

weight and momentum, are not so easily controlled.

A street car is generally run separately, rarely with

more than two or three coupled together, and there

° is but little danger of collision. They do not run

so rapidly, their movements are easily and quickl

rg ked, and the roadbeds are constructed upon level

r graded streets, without deep cuts, and generally

Votaed Nor do street railways carry freight. The

greatest railroad hazard and danger of personal ia-

jury to railroad employes arise from operating their

trains. There is no such danger in operating street

railways, whatever may be their motive power, be-

cause they do not carry freight. [specially is the

danger in coupling their cars entirely absent.

The court concludes that street railways, though within

the technical meaning of the terms used, were not within

the mischief felt which resulted in the passage of the law

and therefore were not within the legislative intent.

In Sams vs. The Railway Company, 174 Mo. 53, 61 DL.

R. A. 475, the statute applied to “every railroad corpora-

tion.” The defendant had been incorporated as an

ordinary railroad company with the power of eminent

domain. It was shown that it had exercised the right

of eminent domain to acquire part of its railway; that its

road in the city was in the city streets, and of the same

character as ordinary — street railways, while in the

country it was partly of that character and partly of the

character of the ordinary steam railroads, and the cars

were moved by electricity with trolleys, and for carry-

ing passengers only, except that the defendant had one

car propelled as its passenger cars were, which was used

to carry the United States mails and one-half of it was

arranged to carry freight or express packages and was so

used. The court said :

“It is the peculiar nature of the hazard incident

to the railroad business that makes the founda-

tion of this statute. Reference to this peculiarity

runs through all the cases sustaining the validity

of the fellow-servants statutes,

“In Railway Company vs. Ellis, 163 U.S. 150,

Mr. Justice Brewer said: “The business in which

they are engaged is of a peculirly dangerous na-

ture and the liability in the exercise of its police

power may justly require many things to be done

by them in order to secure life and property.”

“In Lavalee ys, Railway Company, 40° Minn.

263, 41 N. W., 974. the court said: “The fre-

queney and magnitude of the dangers in) which

those empioyved in operating railroads are exposed ;

the difficulty, sometimes Impossibility, of escaping

from them. with any amount of care, when they

come; the fact that a great number of men are

emploved, cooperating in the same work, so that

ho one of them can know all the others, their com-.

peteney, skill, and care, so that he Mav not be said

to voluntarily assume the risk arising from the want

of skill or care by any one of the number. are suf-

ficient reasons for applying a rule of lability on

the part of the employer to the employe so em-

Bie)

ployed, different from that ordinarily applied be-

tween master and servant.’

But no reason can be suggested why such dif-

ference should be founded, not on the character of

the employment, nor of the danger to which those

employed are exposed, but on the character only

of the employer.

“In Johnson ys. ‘The Railroad Company, 15

Minn., 222, 8 L. R.A. 419, where the court was

considering what employes were within the scope

of the fellow-servants statute, said : “Therefore,

after, mature consideration, our conclusion is that

if any limitation is to be placed by the courts

upon the application of this statute, and upon con-

stitutional grounds there must be. the only one

which will furnish any definite or logical rule is to

hold that it only applies to those employes who are

exposed to the peculiar hazards incident to the use

and operation of railroads and whose injuries are

the result of such dangers... Men engaged

in the operation of street railways are exposed to

hazards, but nof to the peculiar hazards which dis-

tinguish men engaged in operating s/eam railroads

and which have made them a class for special legis-

lation.”

In Norfolk Traction Company vs. Ellington, 108) Vir-

ginia, 245, the Court of \ppeatls construed the Virginia

Fellow-servant Act, sec. 162, Virginia Constitution, which

applied to “every employe of a railroad company engaged

in the physical construction and repair or maintenance of

its roadbed 2...) oor in any work in or upon a car

or engine standing upon a track, or in the physical opera-

tion of a train, car, engine, or switeh, or in any service

requiring his presence upon a train, car, or engine,” and

said :

“If, therefore, it be conceded that the word

‘railroad’ in its broadest: signification, would in-

clude both street railways and steam railroads,

ent tlie

nevertheless a critical examination of the lan-

guage of section 1620 and other portions of the

constitution and laws of the State in part materia,

aided by the history and spirit of. the provision,

lead to the conelusion that the words ‘railroad

company” as employed in that section, were only in-

tended to apply to railroads proper, or commercial

railroads.”

The Virginia court gives an enlightening comparison

showing the “inherent dangers of the respective businesses

of railroad companies proper and street railwa} companies”

as illustrated by statistics taken from the reports of the

State Corporation Commission of Virginia, and says:

In 1903 on steam railroads out of a total of

289 persons killed or injured by accident, 2319

were employes. On electric railways out of a total

of 493 persons killed or injured by accident, 9 were

employes. In 1904, on steam railroads, out of a

total of 2781 persons killed or injured by accidents,

#264 were employes. On electric railways out of

a total of 206 persons killed or injured by accidents,

were employes. In 1905 on steam railroads out

of a total of 1812 persons killed or injured by acer-

dent, 1353 were employes. On electric railways out

of a total of 230 persons killed or injured by acci-

dent, 19 were employes. And in’ 1906) on steam

railroads out of a total of 2277 persons killed or

injured by accident, 17735 were employes. On elec-

tric railways out of a total of 203 persons killed or

injured by accident, 27 were employes, * * * Jf

is also worthy of notice that While tite dockets of

this court ahkound with fellow-servant cases occur-

ring on steam railroads we recall but one instance

of the kind in connection with electric railways.”

These statistics illustrate Most aptly the contention that

the risk of injury to employes upon. street railways could

in no legitimate Way have figured in the public sentiment

which resulted in the enactment of the Federal Empl vers’

dability Law, either of 1906 or T90S.

Practically the same question here involved was pre-

sented to the Court of Appeals in the case of Rail-

way Company vs. Downey, #0 App. D. C.. 147, which

case arose under the act of 1906 and in which that

court overruled the contention now being made as to

that act, upon two grounds; first, “upon the uncon-

tradicted testimony” in that case that “the defendant. ts

both a carrier of passengers and freight “* second, the

language quoted from the Second Employers’ Liability

Case upholding the constitutionality of the law of 1908

that “the term ‘commerce’ comprehends more than the mere

interchange of goods. It embraces commercial intercourse

“yall its branches, including the transportation of passengers

and property by common carriers. whether carried on by

land or water.”

The act of 1906 applied to “every common carrier ¢n-

eaged in trade or commerce,” while the present act 1s con-

fned to common carriers by railroad “while engaged in

commerce.

But it is submitted with very great respect that that quota-

tion does not justify the conclusion that every one engaged in

commerce is subject to the liabilities of either the act of

1906 or the present act, and that in order to come within

the provisions of the act of 1908 there must not only be an

engaging m1 commerce but there must be an engaging in

commerce by a common carrier; that that carrier must be a

carrier by railroad, and that a mere carrier of passengers hy

street railway under the authorities first above cited 1s not

such a common carrier.

That court also. in support of its conclusion, cited the

case of Omaha & Council Bluff St. Ry. vs. Interstate Com-

merce Commission, 191 Fed., 40. Since then the case so

cited was brought to this court and reversed in 230 U.S.

324. Mr. Justice Lamar delivered the opinion of the court

3y)

On page 334, referring to the original Interstate Com-

merce Act, he said:

“The statute in terms applies to carriers engaged

In transportation of Passengers or property by rail.

road.”’

It will be seen that this is very different from the terms

used in the Federal Kmployers’ Liability Law of 1908,

Which applies not to “common carriers whether engaged in

the transportation of Passengers or property,” but is con-

fined to “common carriers by railroad.”

Mr. Justice Lamar then mtinues :

“But in iss? that word (railroad) had no fixed

and accurate meaning for there was then as Now

“(ste)” a contlict in the decisions of the state courts

as to whether street railroads were embraced within

the provisions of a statute giving rights or Imposing

burdens on rai/roaids. The present record

discloses a similar disagreement in Federal tribunals.

For not only did the « miunerce court and the cireuit

court differ, but it appears that the members of the

commission were divided on the subject when this

case was decided and also when the question was first

raised in Willson vs. Rock Creek R. Co.,

Com. Rep., 83.

“This conflict is not so great as at first blush would

appear. For all recognize that While there is a

smitlarity, between railroads and street. railroads

+ Inters.

there is also a difference. Some courts, emphasizing

the similarity, hold that in statutes the word ‘railroad’

includes ‘street railroad,” unless the contrary is re-

quired by the context. Others. emphasizing the dis

similarity, hold that ‘railroad’ does not include ‘street

railroad’ unless required by the context. since, as

tersely put by the Court of \ppeals of Kentucky, “a

street railroad, ina technical and popular sense,

different) from an ordinary railroad as a

IS cs

street is

cI Os ete ae ch Nah aca a

41)

from a road. Louisville & P. R. Co. vs. Louisville

City R. Co., 2 Duv. (Ky.), 175.

“Tf the scope of the act is such : as to show that

both classes of companies were within the legislative

contemplation, then the word ‘r hg will include

‘treet railroad. On the other hand, if the act was

aimed at railroads proper, then ‘street pers ads’ are

e xchuded. :

“It is to be poted that ordinary railroads are con:

structed on the companies’ own property. The track:

extend from town to town, and are usually connected

with other railroads which themselves are further

connected with others, so that freight may bs

shipped, without breaking bulk, across the continent,

Such railroads are channels of interstate commerce.

Street railroads, on the other hand, are local, are

laid in streets as aids to street traffic, and for the uss

of a single community, even though that comunity

be divided by state lines, or under different miuatict pal

control, When these street railroads carry passen-

vers across a state line they are, of course, engaged

ity interstate commerce, but not the commerce which

Coneress had ins mind when legislating in ISS;

The railroads referred to in the act were

not those having separate, distinct, and local: streei

lines, but those of whom tt was required that the:

should make joint rates and reason thle facilities for

interchange of trafie with connecting lines, so that

freight might be easily and expeditiously moved 1

interstate commerce.”

It is also true that the case of Railroad Company vs.

Downey, subsequent to its decision by the Court of Appeals,

was brought to this court on a writ of error; but this court

declined and refused to pass upon the very questions now

presented in this case, upon the distinet ground that the

vet of 1906 after its emasculation by having been declared

sneonstitutional so far as it affected interstate commerce,

heeame a mere local statute and that it was therefore with-

—_— Ea eT eet eee re D

out jurisdiction to review the construction placed upon it

by the Court of Appeals.

In Hughes vs. Indiana Traction Company, decided by

the Supreme Court of Indiana, June 3, 1914, and reported

in 105 N. E., at p. 537, construing the Indiana Co-Employes’

Liability Act of 1908, applying to “every railroad or other

corporation in the State,” it was held that street railways

could not be included under the term “other corporations,”

and that it:

ay does not, in view of a long course of

legislation and judicial decisions recognizing the dis-

tinction between steam railroads and Street and inter-

urban railroads, apply to an interurban railroad com-

pany operated by electricity, for railroad c mMpanies

operate long trains controlled by numerous servants,

while trains on interurban lines generally consist of

a single car operated by two servants.”

Citing, in addition to a long line of Indiana cases, Sams

vs. St. Louis, ete., R. Co., 174 Mo.. 53, 73 S. W., 686, 61

L. R. A., 475; Norfolk, etc., Traction Co. vs. Ellington,

108 Va., 245, 61 S. E., 779,17 L. R. A. (N. S.), 117,

In this case the court, quoting from a prior Indiana de-

cision, says:

“It is quite true that an electric railroad, as we

now know such roads. might be called a railroad:

but, as was said in Bridge Proprietors vs. Hoboken

Co., 1 Wall., 116, 17 L. Ed., 571: ‘It does not fi Hlow

that when a newly invented or discovered thing is

called by some familiar word, which mes nearest

to expressing the new idea, the thing so styled is

really the thing formerly meant by the familiar

words. . . . The track on which the steam

cars now transport the traveler or his property is

called a road; sometimes, perhaps generally, a rail

road. The term road is applied to it, no doubt, be-

cause in some sense it is used for the same purpose

that roads had been used. But until the thing was

made and seen, no imagination, even the most fertile,

could have pictured it, from any previous use of

the word road.

“In discussing the expression ‘upon a railway’ as

used in the act, the author of Dressers Employers’

Liability, sec. 80, says that the expression means a

steam railway or one originally operated as such.

This section of the act was passed to meet the dan-

yers arising from steam railroads, and it was enacted

at a time before electric railways had been adopted,

or street railways had become a source of public

danger.”

“See, also, Whatley vs. Zenida Coal Co., 122 Ala.,

118, 26 South., 124; Jarvis vs. Hitch, 161 Ind., 217,

67 N. FE., 1057."

It is to be remembered that at the time this legislation

was enacted the Congress of the United States was follow-

ing similar legislation enacted by a large number of the

States of the Union. \fter the question had arisen and

been decided in a number of them as to whether or not these

previously enacted laws applied to electric railways or not,

Congress did not see fit to put any language into its enact-

men’ expressing a purpose to extend it to street railways

de ag an interstate business. [It must be presumed that it

acted with knowledge of these decisions in thus adopting

this legislation under the principle that when one State

adopts legislation originally adopted in another State which

has been the subject of judicial construction, that in so

adopting it adopts as a part of the law the construction which

has been placed upon such law in the State of its origin.

Applying this principle to the case at bar, it would appear

clear that the Federal Employers’ Liability Law of 1908 was

not intended to apply to street railways.

(b) At the most that question was one of fact

which should have been submitted to the jury

and not determined for the jury by peremp-

tory instructions as was done by granting ap-

pellee’s prayers Nos. 4, 5, 6, 7 and 8, all of

which assumed as matter of law the appellant

to be a common carrier by railroad within the

meaning of the Federal Statute, and as such

applied it to the case (Assignments 9, 10, 11,

12, 13).

Even should it be held, that if the Washington Railway

and Electric Company, in addition to doing a purely passen-

ger business was also engaged in carrying freight or in other

activities or methods, that it would constitute it a common

carrier.

In discussing this question in the Court of Appeals, coun-

sel for appellee apparently admitted that the great weight of

State decisions on this point upheld the contention of the

appellant, stating on their brief (p. 23):

“Appellant's brief cites and quotes from a great

number of State decisions * * *”

and comfort themselves in regard thereto thus :

“How does it avail appellant to cite a hundred or

more decisions of State Courts. ¢ mstruing their own

local statutes, as stars to guide this Court in constru-

ing a Federal Statute. when those State decisions

must fade away as the stars of night in the bright

sunlight of the illuminating contra decisions of the

Supreme Court of the United States. casting their

rays of reasoning fairly and squarely on the dis

puted question ?”

The opinions of the Supreme Court of the United States,

to which the learned counsel here to touchingly refer, are

the cases of Omaha & Council Bluff Street Ry. Co. vs. In-

terstate Commerce Commission, 230 U.S. 324, which they

further say “was studied with great care:” MeAdow ys.

Kansas City W. Ry. Co., 164 S. W., 188, subsequently

affirmed by this Court in 240 U. S., 51; Spokane, etc., Ry.

Co. vs. United States, 210 Fed., 243, subsequently affirmed

in 241 U. S., 344, and Spokane, ete., Ry. Co. vs. Campbell,

217 Fed., 518, since affirmed in 241 U. S., 497; United

States vs. B. & O. S. W. Ry. Co., 226 U. S., 14.

We will briefly consider each of these cases to show that

none of them except the Omaha & Council Bluffs Case his

any application to the case at bar.

The case of United States vs. B. & O. S. W. R. Co., 226

U. S., 14, did not pass on the question as to whether an

electric railway was a “railroad” within the meaning of

the Federal Emplovers’ Liability Law of 1908 or not. That

question was not presented. The question there was whether

or not the Interstate Commerce Commission had jurisdiction

to order switch connections and an interchange of traffic

between the steam railroads in question and the Cincinnati &

Columbus Traction Company, an interurban electric rail-

way. The Court said through Mr, Justice Holmes (p. 18):

“The line of the ‘Traction Company is an ‘inter-

urban’ electric railway for passengers and some

freight, running under a state charter between Nor-

wood and [illsboro, through the middle of the dia-

mond enclosed by the steam roads, (with which it

was seeking switching connections), and authorized

to go on to Columbus * * *. The Traction

Company applied to the Commission for switch con-

nections and they were ordered as we have said.”

The Court continues:

“Some technical objections were raised, but the

substantial question is whether the Traction Com

pany is a ‘lateral branch line of railroad’ within the

meaning of the first section of the act to regulate

commerce, amended by .\ct of June 8, 1910."

After discussing this question. the Court held:

“The Traction Company is not within this class

It is an oo venture, mits general course

parallel to, more or less competing with, the steani

roads, and rani i ona different plan.”

And thereupon affirmed the action of the Commerce Court

in reversing the action of the Interstate Commerce Com-

mission which ordered the switch connections to be made.

It is hard to conceive how this case could be cited for

authority for a proposition in no way involved. As far

as the particular point which was decided goes, it. tends

rather against the contention of the appellee than inher

favor,

The cases of Spokane, ete, R. Co. vs. United States, 241

U. S., S44, and Spokane, ete., R. Co. vs. Campbell, 241

U.S. 497, are neither in point. ‘The first involved a con-

struction of the Safety Appliance Act: as to whether or

not it was applicable to the electric railway there in ques-

tion. “The court held that it was. But that railw: ty is as

different from the street car system of this appellant as this

appellant's lines are from a steam railroad.

Mir. Chief Justice White there said (p. OG):

“The railroad company operated a street rail: Ly

system in Spokane, Washington, and several is/er

urban clectric lines, one of which extended. frotm

Spokane to Coeur d'Alene, Idaho, a) distance of

about 40 miles. Over this line passenger (rains com-

posed of two or more cars were operated, starti we at

a station near the center of Spokane and running

for a mile and a quarter on the street railway tracks

to the company's yards near the city limits, and

thence over its private right) of ay to Coeur

d'Alene. The road was standard gauge, with rails

of standard weight, and the passenger trains were

made up according to standard railroad rules, with

markers to designate the trains, and were run on

46 :

schedules and by train orders. Passengers traveled

on tickets entitling them to ride to and from desig-

nated stations, at which regular stops were made,

and express matter and baggage were carried on the

passenger trains. The street car business was en-

tirely separate from that done by the interurban line,

the employes of the one having nothing whatever

to do with the other. * * * In addition to its

passenger trains, the interurban line also operated

freight trains, which, however, started from the

company’s yards and ran directly to Coeur d'Alene,

and did not, therefore, enter upon the street railway

tracks.

“The fifteen cars here in question were passenger

cars, and on the day named were used tn passenyer

tretns which were run from the station in Spokane

to the city limits, and theice over the company's

right of way to Coeur d'Alene. Twelve of them

* * were cars regularly used on the interurban

cars which were regularly used only on the street

railway tracks, but which, because of unusually

heavy traffic on the day named, were coupled to-

gether with link and pin couplers and operated ay «

train to Coeur d'Alene.”

None of these cars complied with the requirements of the

Safety Appliance Act. This court said:

“The contention is that as the trains in which the:

fifteen cars were hauled were operated over the

street railways tracks from the station in Spokane to

the yards of the company, they were ‘used upon

street railways, and were hence expressly exempted

from the requirements of the act by the amendment

of 1903" (which exempted from the provisions of

that act trains, cars and locomotives which are used

upon street railways ).

The court very properly said that this contention was

without merit, and held that in order to be entitled to the

exemptions the cars must be used exclusively upon street

railways.

The Campbell Case involved the same road and Was a

suit by an employe, Campbell, who was a motorman in

charge of a special train running between Spokane and

Coeur d'Alene, made up of a combined motor and passen-

ger car and two trailers. ‘The train was equipped with

Westinghouse air brakes which were out of order. ‘The

court held there that the railroad in question was within the

provisions of the Safety Appliance Law and the mployers’

Liability Law.

The MceAdow Case does not sustain the point to which

it was cited by the appellee and by the Court of \ppeals

in its Opinion in the instant case. Mr. Justice Holmes, who

delivered the opinion for this court, said (p. 53):

“The defendant was a Kansas corporation having

an electric railway from Leavenworth into Kaitsas

City, Kansas. It had a traftic agreement with the

Metropolitan Street Railway C pany operating

street railways in Kansas City, Missouri, by which

the latter was to receive the cars of the former, car-

ryuig passengers and freight.”

In the opinion of the court, it was said:

“The defendant's road appears to be of the class

of the traction company that was before the court

in United States vs. Baltimore & Ohio S. \W. R. Co.

226 U. S., 14, and that was excepted from the de-

cision in Omaha & C. LB. Street R. Co. vs. Inter-

state Commerce Commission, 230 UL S.. 324. 337.

Such roads have been held to be within the act of

Congress. Spokane & I. E.R. Co. vs. Campbell,

183. C. C. A., 370, 217 Fed, 518. * * * But

these questions really are immaterial here since the

Kansas statute is so similar to that of the United

States that the liability of the defendant does not

appear to be affected by the question which of them

governed the case. In such circumstances it is un-

necessary to decide which law applied.”

ee ne

one

en ig a

cates

Dory,

; bes io8 ay

Mees gaa

Sk be as

eee aE

But waiving the point that this court did not finally pass

on the point now at issue in the case just cited, and treating

the extract quoted as if it terminated with the sentence

“Such roads have been held to be within the act of Con-

gress,” and citing Spokane, ete., R. Co. vs. Campbell in

support thereof, it is plain that the Spokane, etc., R. Co.

as the same is described in the two Spokane railway cases

already cited, is not merely a street and suburban railway

company engaged purely in city and suburban passenger

traffic as the appellant here is, but that it was a commercial

railway engaged in the transportation of passengers and

freight as fully and as comprehensively as any ordinary

railroad, the only difference being that its trains were

propelled by electric motors rather than steam locomotives.

It is also clear from a perusal of this extract that the

particular character of railway, within the provisions of

the Employers’ Liability Law and the Interstate Commerce

Law, can be ascertained from a comparison of the two rail-

ways referred to in the extract where the court says (p.

D4):

“The defendant's road appears to be of the class

of traction company that was before the court im

United States vs. Baltimore & Ohio S. W. R. Co.

226 U. S., 14, and that was excepted from the de-

cisions in Omaha & C. B. St. R. Co. vs. Interstate

Commerce Commission, 230 U.S., 324."

By referring to these two opinions it should appear just

what is the class of the railroad here referred to and what

the point of distinction is. As already pointed out, the

kind of road which was before the court in United States

vs. Baltimore & Ohio S. W. R. Co., to-wit, the Cincinnati

& Columbus Traction Company, is described as “an iter-

urban electric railway for passengers and some freight.

running between Norwood and Hillsboro through the mid-

dle of the diamond” (described elsewhere as 53 miles long).

LO GRAPE

“enclosed by the steam roads and authorized to go on to

Columbus.’

ture, in its general course parallel to, more or less com-

Again, it is described as “an independent ven-

peting with the steam roads and working on a different

plan.” So we find that the road there referred to is a gen-

eral commercial railroad e1 gaged in the transportation of

both passengers and freight between different cities and

towns over its private right of Way and competing actively

with the steam roads and even actually seeking physical

switching connections with them. evidently for the purpose «

of interchanging freight without having to break bulk.

Now reverting to the Omaha & Couniil Bluff Case to vet

a description of the character of railr ~ad mentioned as “es

cepted from the decision,” on page 337 we find the fol-

lowing :

“But is it said since 1887, when the act Was passed,

anew type of interurban railroad has been dey eloped

which, with electricity as a motive power, uses

larger cars, and runs through the country from town

fo fown, enabling the carrier to haul passengers,

freight, express, and the mail for long distances at

high speed. Weare not dealing with sueh a case, but

with a company chartered as a street railroad, doine

a street ratlroad business and hauling no freight.”

To show further that the character of line of the appel-

lant company is practically identical with the class of rai

roads ineluded in the decision in the Omaha & C. Bo St. RB.

Case, we quote further as to the character of railroad jy).

tended to be inehnuded therein, further showing that that

description coincides in all respects with the character .

railroad that the appellant is authorized by its charter to

operate and which in fact it does operate.

Mr. Justice Lamar Says:

“At some points the line is on private property,

but where this is and to how great an extent does

S041—4

not appear. Indeed, the record does not show that

electricity was used as a motive power, though in

the light of modern methods that may possibly be

assumed, But it affirmatively appears that the com-

pany was chartered as a street railroad and hauls

no freight and is doing only @ business appropriate

to a street railroad, so that whatever the motive

power or the size or the speed of the cars is imma-

terial. In any event, there were ‘street cars’ re-

ferred to in the act of Congress authorizing the con-

struction of the bridge from Council Bluffs to Omaha

(24 Stats. at L., 501, Chap. 356). The company

used such cars and did a street passenger business

only, it laid its tracks in crowded thoroughfares of

those cities and their suburbs, and it is manifest that

Congress did not intend that these tracks should be

connected with railroads for hauling freight cars

and long trains through and along the streets of

Omaha and Council Bluffs.”

It thus is plain that the mere fact that a street railway

does a suburban as well as urban business, that it is oper-

ated by electricity instead of horse power, and that. it

operates in part over a private right of way, does not

: fasten upon it the character of a railroad within the mean-

4 ing of these acts, for on page 355 the learned Justice, speak-

ing for the court, continues :

“Tf the scope of the act 1s such as to show that

both classes of companies were within the legisla-

Sve aA

tive contemplation, then the word ‘railroad wall in-

clude strect railroad. On the other hand, if the act

4 tine ‘ ;

. was aimed at railroad proper, then street railroads

are excluded from the provisions of the statute. .\p-

plying this universally accepted rule of construing

this werd, it is to be noted that ordinary railroads

are constructed on the companies’ own property.

The tracks extend from town to town, and are usual-

ly connected with other ratlroads, which themselves

are further connected with others, so that fretght

ot =

may be shipped without breaking bulk, across the

continent. Such railroads are channels of inter-

state commerce. Street railroads, on the other hand,

are local, are laid in streets as aids to street traffic,

and for the use of a single communty, even though

that community be divided by state lines, or under

different municipal control. When these street rail-

roads carry passengers across a state line they are,

of course, engaged in Interstate commerce, but not

the commerce which Congress had in mind when

legislating in 1SS7. Street railroads transport pits-

Sengers from street to street. from Ward to ward,

from city to suburbs, but the commerce te which

Congress referred was that carried on by railroads

engaged in hauling passengers or freight “between

states,” “between states and territories,” “between

the United States and foreign countries.” ‘The act r

ferred to railroads which v ere required to post their

schedules—not at street. corners Where passengers

board street cars, but in ‘every depot, station, or office

Where passengers or freight are received for trans

portation.” The railroads referred to in the act were

not those having separate, distinct, and local street

lines, but those of whom it Was required that they

shotld make joint rates and reasonable facilities for

interchange of traffic with connecting lines. <:

that freight might be easily and expeditionsly moved

in interstate commerce.”

It is submitted that a clearer description of the business in

which the appellant e Mpany is engaged could not have heen

indicated than is thus depicted in this opinion, if the learned

Justice Who wrote it had had all of the facts of this case be-

fore him. And yet the Court of Appeals, doubtless misled

by the earnestness and eloquence of the learned counsel for

appellee, slips into the error of saving that the appellant

company was chartered “not as a street raihway company

but as an cleetric tr Hey suburban and interurban railway

company.” and that “this case is anak gous to the situation

disclosed in. the case of Kansas City R. Co., v. Mc \dow,

ATES oe ioe yh BRIO MOE Ea

240 U. 5., 451, where the railway company operated an elec-

tric trolley line between Leavanworth, Kansas, and Kansas

City, Missourt, where it connected with the lines of a street

railway company over whose line its cars were run from and

to the terminus of its own line.” and then quotes the extract

therefrom above quoted to the effect that the defendant's

road appears to be of the class of the traction company that

was before this court in United States v. Baltimore & Ohio

5S. W. R. Co., and was excepted from the decision of the

Omaha & Council Bluffs R. Co. v. Interstate Commerce

Commission.

In view of the fact that this company in its charter above

quoted was merely authorized to operate its line from a “pas-

senger station” at 35th and M Street, running over certain

named streets to Cabin John Creek, a suburban pleasure re-

sort of this city, that it was only permitted to contract with

“any sfreet railway company in the State of Maryland or in

the District of Columbia :" that it was prolibited from run-

ning any steam car, locomotive or passenger or other car for

steam railways over its lines or tracks, and that the prohihi-

tions of its charter were made to apply to any extension that

nught be made of its line in the State of Maryland; that the

gauge of the tracks were to be the same as that of the I as/

mgton and Georgetown Street Railway; that it was required

to pave its tracks on all public streets “between the rails and

two feet outside thereof :” that it was required to light its

tracks with electric lights at all s/ree?t crossings and to sound

a gong or bell at all crossings: that the fare for riding over

the said road should not exceed tem cents each way per pas-

senger, and that this amount was subsequently reduced to

five cents or six fares for twenty-five cents, just as is applied

to all street railroads in the District. that Section 4 of the

amendatory act of .\ugust 25, S04. refers to it and the

other railway companies therein mentioned as ‘fle strect

railway companies mentioned in this act.” Vhat it was per-

mitted to “acquire and hold stock in any street railway cor-

REG LI a Dye hte BAO

porations specifically named” in the act, and that it was pro-

hibited from crossing any steam railroad at grade—all these

facts bring it clearly within the terms of the opinion of this

court in the Council Blutis case. to wit: That it is referred to

as a street railway Mpany in its act of ines rporation ; that

the company used street curs only and did a street passenger

business only and laid its tracks in crowded thoroughfares

of the city and its suburbs, “and it Is manifest that Congress

did not intend that these tracks should be connected with

railroads for hauling freight ears” or other steam. road

equipment over its lines, but that itis a “street railroad laid

In streets as an aid to street trathe and for the use of a single

community, even though that munnity be divided by State

lines or under different municipal control, and that it trans-

ports passengers from street to street, from ward to ward,

trom city to suburb,” all of Which things are strictly compat-

ible with street car trattic and are not the character. of

trafic which is either within the reason which calls for the

regulation of commerce or the evil « ght to be remedied hy

the Federal employers’ laability Law of 1908 as amended.

Again, the appellee's prayers 4, 5, 6, 7, and 8, (Ree. pp.

61-63) undertake to state not only the prerequisites for re-

covery but the measure of damages in event the jury find

in favor of the appellee. They all assume as matters of law

first, that the Federal employers’ Laability Law applies to

the case; and, second, that thi appellee if entitled to recover

at all is entitled to recover not only for pecuniary loss ac-

cruing to the beneficiaries by reason of the death of their

son, but as matter of fact as well of law to recover for

physical pain and suffering as well,

\ll of these assumptions are erroneous, and hence the

granting of each prayer was errone: us within the meaning

of the Federal mplovers’ Liability Law, and if the test;

mony of Mrs. Fred G. ‘larhell above quoted was sufficient

to justify a finding to that effect by the jury, as intimated

by this court in the Downey case, it must be remembered

—_

that this testimony was not une mtradicted as in the Dew-

ney case, but was contradicted point blank by the testimony

of Mr. Geo. G. Whitney, which at the least would make it a

question of fact to be found affirmatively by the jury, and

that, therefore, the ‘court erred in directing the jury as a

matter of law that a case was made out under the Federal

nplovers’ Liability Law.

The action of the trial court as affirmed by the Court o!

Appeals was erroneous in respect to the question of

recovery for-conscious pain and suttering (Assign-

ments 4, 5, 6, 7, 11, 12, 13 and 19):

(a) Because after all the evidence had been

taken and all witnesses discharged, the court

allowed the pleadings to be so amended as to

introduce a new cause of action (Assignment

5):

li will be noted (1) that the first and second counts of

the original declaration in this case were drawn under the

District statute which only allows recovery for pecunlary

losses of the next of kind, and does not permit any recover)

for conscious pain and suffering undergone by the decedent.

le will be noted (2) that the production of the suit and

right of action are alleged im these counts—-which could

not have been intended to assert a right to recover for

conseious pain and suffering——in identical terms with those

need in the third and fourth counts under which it is NOW

contended by aid of the amendment the appellee seeks to

recover for conscious pain and suffering.

The allegation of injury to decedent and resultant dam-

ages to the next of kin in all four counts is in the following

laneuage :

“That the deceased, on the day and date specified

was hit or struck . . . by one of said

— v4 Fi

posts or poles . . . and was thereby knocked

from said car. thereby causing immediate

and profuse hemorrhages, in direct consequense

whereot the said deceased died on, to wit. the sth

day of July, 1913, within one hour after bem hit

and struck aforesaid and that the deceased at. the

time of his death was unmarried, and was, to Wit, IS

years of age, and left surviving him. this plainuff,

Who is his mother, and Francis William Seala, his

father, as his only next of kin, with whom he resided

and to whose support he contributed and sho by

reason of the wrongful act 2. resulting in the

death of the said deceased, has sutfered and will in

the future suffer great loss and damage and will be

deprived of the support, maintenance, benefits and

advantages which otherwise would have been given,

rendered and supplied by the deceased had he lived.

“Wherefore the said plaintit? says that by reason

vf the premises and in accordance with the statutes

in such case made and provided, the defendant is

liable for an action of damages and a right of action

has accrued to the plaintitf as the personal representa-

tive of said deceased, and accordingly the plaintifi

brings this suit and claims the sum of $10,000 dami-

ages. "'

Age ».

In the appellee's brief filed in the Court. of \ppeals her

very able counsel, in a vain effort to show that. the third

and fourth counts in the declaration were drawn with the

purpose of asserting a right of recovery in the plaintiff for

conscious pain and suffering of the decedent, as well as for

pecumary loss resulting to the statutory beneficiaries as the

result of his death, said (p. 48):

“It is to be noted that the word in both counts js

not ‘statute, but in the plural. ‘statutes’. ’

and argues that this shozs that the suit was brought not only

under said Act of 1908, but under both that Aet and also the

Amendatory Act of 1910. “The third and fourth counts,”

they say. “were framed under the Federal Employers’ Lia

bility Act, and when the defendant is a common carrier by

railroad as in the case at bar the act of 1906 (valid in the

District of Columbia) is superseded and there are but tive

acty (italies theirs) dealing with the subject; namely, the

\et of 1908 and the amendment of 1910. Therefore, the

plural use of the word ‘statutes’ necessarily, ea or ferminis,

alleged that the suit was brought under the \mendaters

vet of 1910 as well as the Act of 1908."

This but illustrates the desperate need of counsel and

their willingness to grasp at straws, when we compare the

like allegations of the first and second counts, and which con-

fessedly are brought under the provisions of See, 1301 ot

the District of Columbia Code, and tind that there the right

of action is alleged in identical terms; to-wit, “in accord-

ance with the s/atufes (plural again) in such case made and

provided.” In each of the four counts there is but ove right

f action asserted; that right of action which accrued orig-

inally to the appellee; whereas the right of action for con-

scious pain and suffering did not acerue originally to: the

appellee but accrued originally to the decedent alone prior to

his death, under the provisions of the .\ct of 1908, and un-

der that act did not survive but died with him, but by the

amendment of 110 was kept alive and permitted to survive

to the personal representative.

On the same page of their brief counsel for appellee, still

endeavoring to show that they intended from the beginning

and even prior to their amendment of their declaration to

sue for conscious pain and suffering to the decedent as well

as pecuniary loss to his dependent parents, say:

“Another significant fact is, that when the declar-

ation was twice amended in neither mstance was at)

increase over the amount of damages originally

claimed mentioned or requested. "That amount in-

cluded both claims. Tf that amount had not included

both claims, it would have been proper at the time

See ee aoe Se ered Nt Ate Nae ys OP os. NE 5

of amendment to request the Court that there be

inserted with the amendment an additional amount as

compensation for the new claim thus bri ught in by

Way of amendmen‘

This absurd contention scarcely needs reply. The faets

in this regard are that the amount of damages in such cases

are ‘aid always largely in excess of the amount even hoped

to be recovered. In the present case the first two counts

were drawn under the District statute for the benetit of but

the next

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